Mann v. Earle

70 Mass. 299

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1855
• Status: Published

Opinion

Dewey, J.

The single question is, whether the actual entry

of a mortgagee and possession under such entry can avail as against the mortgagor, as to right of possession, when the mortgagee had instituted his action to foreclose his mortgage, and the conditional judgment had been rendered in that action, but the period of two months had not elapsed. As to this, we have no doubt. The mortgagee has the right at all times, after breach of condition, to enter peaceably and take possession, and this right is not lost by his pursuing the statute remedy to foreclose his mortgage. Such actual entry is lawful, and may operate to give him possession, although it may not affect the foreclosure. An actual possession by the mortgagee is not inconsistent with maintaining an action to foreclose a mortgage. Merriam v. Merriam, 6 Cush. 93. Page v. Robinson, 10 Cush. 101. The possession was therefore in the plaintiffs, and the action may wed be maintained by them.

Exceptions overruled.