Dyer v. Chick

52 Me. 350

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1864
• Status: Published

Opinion

The opinion of the Court was drawn by

Appleton, C. J.

The complainant, holding mortgages of the premises in controversy, purchased at a public sale on execution the respondent’s equity of redemption and entered peaceably and unopposed into the possession of said premises. While so in possession, the respondent entered upon and expelled him by force therefrom; whereupon this process of forcible entry apd detainer was instituted.

As mortgagee, the complainant had a right to enter peaceably upon the mortgaged premises. It is not necessary to determine whether this process could be maintained against the mortgager, if he should forcibly expel the mortgagee thus rightfully in possession. Howard v. Howard, 3 Met., 548; Reed v. Elwell, 46 Maine, 270; Dunning v. Finson, 46 Maine, 546.

The complainant, by his purchase of the respondent’s equity of redemption, acquired "all the title of the debtor in the premises.” R. S., 1857, c. 76, § 33. He had a right to the immediate possession of the premises, to the rents and profits thereof, and to maintain a real action therefor, as against the judgment debtor. Jewett v. Felker, 2 Greenl., 339; Fox v. Harding, 21 Maine, 104.

Having the right to enter, and having entered peaceably and unopposed and gained possession of a part of the premises, he might lawfully take possession of the residue, if it could be done without a breach of the peace. This assuredly cannot be denied. Mugford v. Richardson, 6 Allen, 76. The respondent could not rightfully interfere with the possession thus acquired.

The complainant, by his deed, acquired a title to the premises in dispute, and, by his peaceable entry therein, obtained a lawful possession and seizin of the same. Disseizin is a. wrongful putting out of him that is seized of a freehold. Co. Lit., 277. By R. S., 1857, c. 94, § 1, the "process of forcible entry and detainer may be commenced against a disseizor, who has not acquired any claim by possession and improvement.” The respondent has acquired no such claim. His former title is in the complainant, whom he has ejected and excluded, by actual force, from premises into which he had a right to enter, and into which he had peaceably entered. This constitutes a disseizin and entitles the complainant to this process. Kinsley v. Ames, 2 Met., 29.

The evidence shows, too, a forcible detainer, as against the complainant, who had rightfully entered upon his own premises. Benedict v. Hart, 1 Cush., 487.

Exceptions overruled.

Cutting, Davis, Walton, Dickerson and Barrows,»JJ., concurred.