Clement v. Bennett

70 Me. 207

• Court: Supreme Judicial Court of Maine
• Decided: September 30, 1879
• Status: Published

Opinion

Appleton, C. J.

This is a process of forcible entry, and comes before this court on a plea of the general issue and a brief statement alleging title in the defendant.

Tho complainant put in a deed of warranty from the defendant to him, dated October 17, 1876, describing the premises in controversy.

The respondent offered a bond of the same date from the complainant to him, covering the same premises, in which ho agreed to convey the same upon the performance of the terms and conditions specified therein.

The deed and bond of defeasance executed at the same time and as part of tho same transaction, constitute a mortgage. The relation of the parties is that of mortgagor and mortgagee. K>. S., c„' 90, § 1.

The mortgagor is not a tenant within the act relating to forcible entry and detainer, c. 94, § 1. Reed v. Elwell, 46 Maine, 270. Hastings v. Pratt, 8 Cush. 121. “The case of mortgagor and mortgagee,” observes Kent, J. in Dunning v. Finson, 46 Maine, 553, “rests upon the peculiar provisions of the statute as to the mode of entry, and tho legislature did not probably contemplate that this process should apply ordinarily to such a case, under the provision in relation to disseizin or that in relation to tenants at will.”

Judgment for the respondent.

Barrows, JDanrorth, Virgin, Peters and Symonds, JJ., concurred.