Ford v. Steele

54 Vt. 562

• Court: Supreme Court of Vermont
• Decided: January 15, 1882
• Status: Published

Opinion

The opinion of the court was delivered by

Powers, J.

The conditional deed under which the defendant was in possession, was in legal effect a mortgage of the lands in question, by the defendant to the plaintiffs, to secure the performance of the conditions recited in said deed. Austin v. Downer, 25 Vt. 558.

At the common law, as between the mortgagor and mortgagee, the legal estate and right of possession was in the mortgagee, before as well as after condition broken. But under our statute, until condition broken, the legal right of possession is in the mortgagor. R. L., s. 1258. After condition broken, the rights of the parties are left by this statute as they stood at common law.

At common law, the mortgagor in possession was a tenant at sufferance merely, and so might be evicted without notice to quit, or demand for possession. Taylor’s Landlord and Tenant, 7th Ed. ss. 474, 703 ; 8 B. & C. 767 ; Adams on Ejectment, 4th Ed. 105 ; Fuller v. Wadsworth, 2 Iredell, 263.

Under our statute the same tenancy exists after condition broken. Mason v. Gray, 36 Vt. 311. It follows that ejectment may be sustained without a demand for the possession.

There was no error in the rulings below, but on motion of the defendant the judgment is reversed,pro forma, to the end that the defendant may seek a redemption under the provisions of Chap. 69 of Revised Laws.