Cavis v. McClary

5 N.H. 529

• Court: Superior Court of New Hampshire
• Decided: November 15, 1831
• Status: Published

Opinion

The opinion of the court was delivered by

RíchaRdson, C. J.

Assumpsit for use and occupation is a proper remedy for the recovery of rent, where the demise is not by deed. In cases where the demise is by deed, assumpsit does not lie. Woodfall, 348—351 ; 14 Mass. Rep. 93, Codman v. Jenkins.

A mortgagee is entitled to the rents off the land from the time he enters and gives notice to the tenant, that he shall look to him for the rent, and no attornment is necessary. Woodfall, 351 ; 1 D. & E. 378, Birch v. Wright; Douglass, 279, Moss v. Gallimore ; 4 Starkie’s Ev. 1516 — 1517 ; 16 East, 99, Lumley v. Hodgson ; 9 B. & C. 245, Pope v. Biggs.

The circumstance, that the land had been previously mortgaged by Flanders, can have no weight in the decision of this cause. It does not appear that Craig and Melven ever entered, or- in any way claimed the rent. It is well settled that a mortgagee has no claim, in any manner, to the rents and profits of the land, until he enters. 5 Bing. 421, Doe v. Giles; 8 Pick. 459, Boston Bank v. Reed; 15 Mass. Rep. 268, F. C. M. Corporation v. Melven ; 9 B. & C. 245, Pope v. Biggs; 1 Pick. 87, Wilder v. Houghton.

Craig and Melven have no claim to the rents, then, which can be interposed to defeat a recovery in this case.

It is settled, that assumpsit will not lie for mesne profits. 1 Mass. Rep. 237, Cogswell v. Brown; 1 D. & E. 378, Birch v. Wright.

But in this case assumpsit may be maintained for the rent, up to the time when the plaintiff, by bringing his writ of entry, elected to consider the defendant a dis-seizor. 1 D. & E. 378, Birch v. Wright.

We see no reason why assumpsit for use and occupation should not be maintained, for the time during which the defendant was in possession with the assent of the plaintiff, although there may have been since, a recovery in a writ of entry.

In general, trespass for mesne profits does not lie in favor of a mortgagee, after a recovery in a writ of entry. But where a mortgagee has actually entered into the land and taken possession, and then brought a writ of entry, we see no reason why he should not recover the inesne profits from the time of his entry.

Judgment on the verdict.