Fernald v. Linscott , 6 Me. 234 ( 1830 )

Mellen C. J.

delivered the opinion of the Court.

According to the form of the issue joined by the parties) the ques-tio.n would seem to be whether, at the time of the alleged trespass, the locus in quo was the soil and freehold of Pugsley ; but from an inspection of-the facts detailed in the report, as well as from the information of the Judge who tried the cause, we learn that the principal inquiry and point in dispute at the trial was, whether upon all the facts in the case, the defence was sustainable, admitting the locus to have been, at the time alleged, the soil and freehold of Pugsley. We were, at first view of the cause, inclined to the opinion that, as the pleadings stand, we could not decide it on its merits, as they were intended to be decided by the parties; but on further consideration we have altered that opinion. It appears that evidence was offered on both sides, and the conclusion of the report is, “ that if the testimony aforesaid was admissible, and would in law authorize a jury to find for the defendants, then judgment is to be entered for them ; but if the court should be of a different opinion, then judgment is to be entered for the plaintiff, for $20.” Thus it appears that we are to decide the cause upon its merits, without any particular reference to the pleadings. In the first place we do not perceive why the testimony which was introduced was not admissible. On one side, it was the testimony of Pugsley ; and on the other, the declarations of Pugsley in relation to the same subject. The single question then is whether the relation in which the parties stand to each other, is such, that the action is maintainable. The defendants allege that the locus in quo was the soil and freehold of Pugsley; and to prove that fact they read the deed of James Linseott, conveying it to Pugsley, in mortgage. The plaintiff is the owner of the equity of redemption, and is now clothed with all the rights which James Linseott formerly had as mortgagor. The report states that Pugsley never entered for breach of the condition of the mortgage 5 but that prior to the alleged trespass he had commenced an action, founded on the mortgage, to recover possession of the premises of James Linseott the mortgagor, who has always remained in possession ; which action was then pending, no judgment having been rendered. The alleged trespass consisted in cutting and carrying away the grass. In the circumstances abovementioned, what were the rights of Pugsley, under whom the defendants justify the entry and cutting ? While a mortgagor remains in possession he is not liable to account for rents and profits to the mortgagee. 2 Atk. 107. 3 Atk. 244. In Hatch v. Dwight, 17 Mass. 289, the court say, “ although a mortgagee may enter at any time, yet until be enters, the land must be considered as belonging to the mortgagor.” So in the case of Houghton v. Wilder, 1 Pick. 87, the Chief Justice in delivering the opinion of the court says, “ The mortgagee may enter and dispossess him (the mortgagor) but until this is done, he has the same rights that he would have, if he had never mortgaged, except that he cannot lawfully do any thing to impair the estate or the security of the mortgagee.” The case also decides the principle that until entry, the mortgagor is not accountable for rents and profits; for he is not a trespasser in taking them, nor is there any express or implied promise to account for them. But we have decided in the case of Stowell v. Pike & al. 2 Greenl. 387, that before entry, the mortgagee may maintain an action of. trespass against the mortgagor, for cutting down and carrying away the timber growing on the mortgaged premises; as it may be destructive of the mortgagee’s security. Now in the case before us, as Pugsley never had. entered and taken possession of the land, he had no right to the profits, nor could he take them himself or au-thorise any other person so.to do. They belonged to the plaintiff. The case of Blaney v. Bearce, 2 Greenl. 132, differs from this. ' There the decision was wholly on the question of title .to the locus in quo, which was expressly in issue by the pleadings. That was an action of trespass quare clausum by the mortgagor against the assignee of the mortgagee; and as it did not appear that the defendant did any thing more than barely enter on the land, doing no damage to the mortgagor, or taking the profits of the land, the court would not sustain the action. On the facts presented in this cause, we are satisfied that, for the reasons above assigned, the action is maintainable. According to the agreement of the parties there must be Judgment for $20 damages and costs.