
    Fernald vs. Linscott & al.
    The purchaser of a right in equity of redemption at a sheriff’s sale, may maintain trespass quare clausum fregit against the mortgagor in possession, who cuts and takes off the growing grass; the mortgagee never having entered for condition broken.
    This was an action of trespass quare clausum fregit brought July 24, 1827, against William and James Linscott, and others; and was originally entered in a Justice’s court, where the defendants pleaded that the locus in quo was the soil and freehold of one James Pugsley ; which was traversed in the court of Common Pleas. At the trial in this court, before Parris J. the plaintiff showed a deed of the land from William to James Linscott, dated April 22, 1822 ; and a mortgage from James to Pugsley; and proved that he had himself become regularly entitled to the right in equity of redemption, as the purchaser at a sheriff’s sale, held Aug. 3, 1826, under an execution against James. And it was admitted that an action was still pending in favor of Pugsley against James, which was brought to recover possession of the mortgaged premises. The plaintiff also proved that he entered and repaired the exterior fences of the farm in the spring after the date of the sheriff’s deed to him ; and that the defendants, in July following, entered into the locus in quo, and cut and carried away the grass there growing.
    The defendants proved that James Ldnscott had continued to dwell in the mansion house standing cin the premises; that he claimed the right to occupy, and take the grass, forbidding the plaintiff when he attempted to cut it; that 'Pugsley, at the mansion house, after condition broken, told him he might cut the grass, requested him to employ a sufficient number of men for that purpose, and said that if it was necessary, he would advance the money to pay them ; and that he accordingly engaged the other defendants to assist him in doing the acts complained of. James had taken the profits of the land up to that time, without interruption. The plaintiff had exercised no act of ownership,' except the repairing of some of the exterior fences ; and this was done without the knowledge or consent either of James or of Pugsley. The latter, being called by the plaintiff, testified that he had never entered for condition broken, nor received any of the produce of the land.
    Upon these facts, reported by the Judge, the parties agreed that if the testimony was admissible, and would authorize a jury to find for the defendants, then judgment should be entered for them; — but that if the court should be of a different opinion, then judgment should be entered for the plaintiffs for twenty dollars.
    
      J. Holmes and I). Goodenow, for the defendants,
    adverted to the agreement of the parties that the defendants were to have judgment if the facts would justify a jury in finding for them ; and they contended that though the testimony of Pugsley himself negatived a formal entry for breach of the condition of the deed, yet the jury would have been warranted, from the other evidence, in finding that he was in actual possession of the land, by James Linscott, his tenant. The case then, they contended, even in the aspect most favorable to the plaintiff, stood as an action of trespass brought by the mortgagor against the mortgagee3 which could not for a moment be sustained. On the contrary the mortgagee may treat the mortgagor as a trespasser or a disseisor, even-before condition broken 5 aqd his remaining-in possession after the mortgage is no disseisin of the mortgagee. Goodwin v. Richardson, 11 Mass. 4695 JV'ewhall v. Wright, 3 Mass. 138 5 Erskine v. Townsend, 2 Mass. 493 ; Taylor v. Weld, 5 Mass. 120; Groton v. Bocpborough, 6 Mass. 50 3 Read v. Dams, 4 Pick. 216 3 Gould v. Newman, 7 Mass. 239 3 Perkins v. Pitts, 11 Mass. 125 5 Dicks v. Bingham, ib. 300 3 Barker v. Parker, 4 Pick. 505.
    But here the plaintiff was a mere stranger. His repairing of some of the fences was a clandestine act, which cannot avail him. The statute gives the purchaser of a debtor’s equity, no right of entry whatever,_but only a rpere right, to redeem. This the plaintiff had not exercised 5 and James was still in actual possession under the mortgagee.' As purchaser, the plaintiff acquired no title to the possession, till the last remainder of title in the mortgagor was extinct," by the lapse of a year after the sheriff’s sale, without redemption of his right in equity, by payment of the amount for which it was sold.
    The pendency of Pugslei/s action does not affect the case, it being brought merely for the purpose of foreclosure.
    > J. and E. Shepley, for the plaintiff,
    cited Wellington v. Gale, 7 • Mass. 138 ; Porter v. Millet, 9 Mass. 101 5 Foster v. Mellen, JO Mass. 4215 Hatch v. Dwight, 17 Mass. 299 ; Erskine v. Townsend, 2 Mass. 493 ; Wilder v. Houghton, 1 Pick. 87.
   Mellen C. J.

delivered the opinion of the Court.

According to the form of the issue joined by the parties) the ques-tio.n would seem to be whether, at the time of the alleged trespass, the locus in quo was the soil and freehold of Pugsley ; but from an inspection of-the facts detailed in the report, as well as from the information of the Judge who tried the cause, we learn that the principal inquiry and point in dispute at the trial was, whether upon all the facts in the case, the defence was sustainable, admitting the locus to have been, at the time alleged, the soil and freehold of Pugsley. We were, at first view of the cause, inclined to the opinion that, as the pleadings stand, we could not decide it on its merits, as they were intended to be decided by the parties; but on further consideration we have altered that opinion. It appears that evidence was offered on both sides, and the conclusion of the report is, “ that if the testimony aforesaid was admissible, and would in law authorize a jury to find for the defendants, then judgment is to be entered for them ; but if the court should be of a different opinion, then judgment is to be entered for the plaintiff, for $20.” Thus it appears that we are to decide the cause upon its merits, without any particular reference to the pleadings. In the first place we do not perceive why the testimony which was introduced was not admissible. On one side, it was the testimony of Pugsley ; and on the other, the declarations of Pugsley in relation to the same subject. The single question then is whether the relation in which the parties stand to each other, is such, that the action is maintainable. The defendants allege that the locus in quo was the soil and freehold of Pugsley; and to prove that fact they read the deed of James Linseott, conveying it to Pugsley, in mortgage. The plaintiff is the owner of the equity of redemption, and is now clothed with all the rights which James Linseott formerly had as mortgagor. The report states that Pugsley never entered for breach of the condition of the mortgage 5 but that prior to the alleged trespass he had commenced an action, founded on the mortgage, to recover possession of the premises of James Linseott the mortgagor, who has always remained in possession ; which action was then pending, no judgment having been rendered. The alleged trespass consisted in cutting and carrying away the grass. In the circumstances abovementioned, what were the rights of Pugsley, under whom the defendants justify the entry and cutting ? While a mortgagor remains in possession he is not liable to account for rents and profits to the mortgagee. 2 Atk. 107. 3 Atk. 244. In Hatch v. Dwight, 17 Mass. 289, the court say, “ although a mortgagee may enter at any time, yet until be enters, the land must be considered as belonging to the mortgagor.” So in the case of Houghton v. Wilder, 1 Pick. 87, the Chief Justice in delivering the opinion of the court says, “ The mortgagee may enter and dispossess him (the mortgagor) but until this is done, he has the same rights that he would have, if he had never mortgaged, except that he cannot lawfully do any thing to impair the estate or the security of the mortgagee.” The case also decides the principle that until entry, the mortgagor is not accountable for rents and profits; for he is not a trespasser in taking them, nor is there any express or implied promise to account for them. But we have decided in the case of Stowell v. Pike & al. 2 Greenl. 387, that before entry, the mortgagee may maintain an action of. trespass against the mortgagor, for cutting down and carrying away the timber growing on the mortgaged premises; as it may be destructive of the mortgagee’s security. Now in the case before us, as Pugsley never had. entered and taken possession of the land, he had no right to the profits, nor could he take them himself or au-thorise any other person so.to do. They belonged to the plaintiff. The case of Blaney v. Bearce, 2 Greenl. 132, differs from this. ' There the decision was wholly on the question of title .to the locus in quo, which was expressly in issue by the pleadings. That was an action of trespass quare clausum by the mortgagor against the assignee of the mortgagee; and as it did not appear that the defendant did any thing more than barely enter on the land, doing no damage to the mortgagor, or taking the profits of the land, the court would not sustain the action. On the facts presented in this cause, we are satisfied that, for the reasons above assigned, the action is maintainable. According to the agreement of the parties there must be Judgment for $20 damages and costs.  