Lackey v. Holbrook

52 Mass. 458

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1846
• Status: Published

Opinion

The decision was made at October term 1847.

Dewey, J.

A mortgagee has a right to immediate possession of the mortgaged premises, when there is no agreement that the mortgagor shall retain the possession until a breach of the condition of the mortgage. This doctrine, so well settled by repeated decisions of this court, has now become incorporated into the statute law of the Commonwealth. Rev. Sts. c. 107, § 9.

We see nothing in the present case to take it out of the ordinary rule applicable to mortgages. It is true that by the entry an opportunity was afforded to the officer to serve a legal process, and make an attachment of the goods of the plaintiff. This does not, however, affect the main question, namely, the right of Holbrook to enter upon the premises, he holding a mortgage of the same. This right of entry, as mortgagee, he might exercise without notice to quit, previously given. New trial granted.