
    Sylvester S. Larned vs. Francis Clarke.
    A mortgagee recovered a conditional judgment, and on habere facias received seizin and possession of the mortgaged premises, but did not tura the mortgagor out, he agreeing to quit the premises peaceably, whenever the mortgagee should lease them : It was held, that a third person, receiving a written lease of the premises from the mortgagee, could not, on the mortgagor’s refusing to quit the premises, maintain against him the' process provided by Rev. Sts. c. J 04.
    This was a proceeding under the Rev. Sts. c. 104, commenced on the 3d of July, 1848.
    At the trial in the court of common pleas, before Mellen, J., the following facts were in evidence: The defendant mortgaged the premises to Asa Cutler, himself remaining in possession. At the March term of the court of common pleas, 1818, Cutler recovered judgment for possession of the mortgaged premises for condition broken, upon which a writ of habere facias issued and was delivered to an officer. The officer on the 29th of May, went with Cutler to the premises, where the defendant still was, and, in the defendant’s presence, gave Cutler seizin and possession thereof. The defend ant offered to hire the premises of Cutler for one year at a rent of $100, and said that if any one would give that rent, he would quit peaceably at any time. Cutler told the defendant that he would see him again; and did not order him off the premises, or say any thing to him about removing immediately. Cutler afterwards, on the same day, let the premises to the plaintiff. The defendant, on meeting Cutler again, claimed some promise of him, and thought he had been hasty in letting. Cutler told him that he had let the premises to the plaintiff, and that if he wished to stay there he must make arrangements with the plaintiff On the first of June, Cutler gave the plaintiff a written lease of the premises for ten months for a rent of $100; and on the same day the plaintiff went to the premises, and told the defendant that he wished him to move out. The defendant said that he should not go. The plaintiff again asked him to go, and he said he should not go till he got ready. Upon this evidence the plaintiff rested his case And the defendant then moved for a nonsuit.
    But the presiding judge ruled, that if Cutler, on the 29th of May, 1848, took possession of the premises, and the defendant then agreed with him to quit the premises peaceably, whenever he should let the same for $100, and Cutler in writing leased the premises accordingly to the plaintiff on the 1st of June, 1848; and if the defendant, early in June, had notice from the lessor and lessee of such letting, and was requested by the plaintiff to leave the premises, and refused so to do; and if the defendant had reasonable time, after such notice and request, and before the commencement of this action to remove from the premises; this action could be maintained. The defendant then submitted to a verdict for the plaintiff, and alleged exceptions to the ruling of the judge.
    This case was argued at the October term, 1850, by E. Fuller, for the defendant, and F. H. Dewey and G. D. Bowman, for the plaintiff
   Shaw, C. J.

The court are of Opinion, that the process, given by Rev. Sts. c. 104, will not fie in the present ease.

The evidence is reported, and it certainly falls far short of proving a forcible detainer. Saunders v. Robinson, 5 Met. 343; Kingsley v. Ames, 2 Met. 49.

Then the question is, whether the process can be maintained on the other branch of the statute, designed to afford remedies as between landlord and tenant. Rev. Sts. c. 104, § 2. The words are, “ and also when the lessee of any lands or tenements, or any person holding under such lessee, shall hold possession of the demised premises, without right, after the determination of the lease, either by its own limitation, or by a notice to quit,” then the person entitled to the premises may be restored to possession.

Upon the evidence reported, we can see no ground to hold that the defendant ever held or claimed to hold, as a tenant of Cutler, or under any lease or demise whatever. Cutler obtained a judgment against Clarke, and on habere facias received seizin and possession. The defendant had no longer any right of possession. Cutler had the right and the actual possession. During some negotiation for a lease, the defendant was not turned out as he might have been; but his possession was merely permissive and temporary, as under a license, and not under any demise. Whatever was the right of the defendant, as mortgagor, before this judgment and execution, it was thereby put an end to.

But whilst the parties stood in the relation of mortgagor and mortgagee, and before judgment and execution, we think the defendant was not lessee, within the meaning of this statute. A mortgagor in possession is sometimes, in a loose sense, said to be tenant at will to the mortgagee. But he is not liable to rent, or to account for rents and profits ; these he holds to his own use. He is like a tenant at will, because the mortgagee may enter upon the estate at his will, if he can do so peaceably, when not restrained by covenant. Moss v. Gallimore, 1 Doug. 265, 269.

But were the law otherwise, in this respect, it would not alter the present case, because the defendant is not in as a lessee, whose term has expired, and clearly is not within the statute. New trial ordered  