Stevens v. Brown

1 Walk. Ch. 41

• Court: Michigan Court of Chancery
• Decided: July 15, 1842
• Status: Published

Opinion

The Chancellor.

In disposing of this motion, it is not necessary to inquire into the validity of the statutory foreclosure. Considering the defendant in the light of a mortgagee, this Court will not prevent him from taking possession of the mortgaged premises. The legal title to lands mortgaged is in the mortgagee, who may at any time after a default in the payment of the mortgage money or any part thereof, if not before, where the mortgage does not provide for the mortgagor’s retaining possession until that time, put the mortgagor out of possession by ejectment

(1) 4 Kent’s Com. 155, and cases there cited. At law, the defendant has a right to the possession of the mortgaged premises, and equity will not take from him that right. It is sufficient that the mortgagee must account for the profits of the mortgaged premises, when the mortgagor comes with his money to redeem; and if he appropriates to his own use, or destroys the crops growing on the premises when he takes possession, he must account for them as a part of the profits.

Injunction dissolved.

Subsequent to this decision, on March 8th, 1843, it was enacted by the Legislature of this State, “That no action of ejectment shall hereafter be maintained by a mortgagee, or his assigns or representatives, for tbe recovery of the mortgaged premises, until after a foreclosure of the mortgage, and the time of redemption thereof shall have expired.” Laws 1843, p. 139.