Wilson v. Ring

40 Me. 116

Opinion

Appleton, J.

It is well settled when the mortgage debt has been paid, though after breach of condition, that the mortgagee cannot maintain a writ of entry to obtain possession of the mortgaged premises.

It is equally well settled, that the mortgagee having .entered into possession for breach of condition, and thus having the legal estate, may successfully resist the suit of the mortgager at law, though the debt may have been paid since such entry. In such case, his remedy is by bill in equity. Parsons v. Willis, 17 Mass., 420.

In this case, the assignee of the first mortgage, after breach of the condition, having the mortgage and -notes duly assigned, entered and foreclosed the mortgage. The tenant, an innocent purchaser, claims under his foreclosure. The plaintiff’s title is subsequent in -the time of its origin, to that of the defendant’s. According to all the authorities, his remedy, if any, is by bill in equity. Hill v. Payson, 3 Mass. 560; Parsons v. Willis, 17 Mass. 420; Howards. Howard, 3 Met. 557.

Plaintiff nonsuit,