
    Marian Skinner et al. versus Thomas Brewer Same versus Same.
    4 mortgagee is not obliged to have his deed with him when he takes possession for condition broken, nor to make any express declaration that he enters to foreclose ; it is sufficient if it appears that the entry is for the non-performance of the condition.
    An authority from the mortgager to deliver such possession, is not required to be in writing.
    Where the mortgagee went to the land mortgaged, but not upon it, for the purpose of taking possession for condition broken, and soon after actually entered upon the land, and continued for three years to take the profits, the mortgager having notice that he was in possession for non-performance of the condition, and assenting thereto, it was held, that the right in equity to redeem was foreclosed.
    These were bills in equity, brought by the heirs at law oí William S. Skinner, for the purpose of redeeming two parcels of land mortgaged by him to the defendant. The complainants alleged a demand upon the defendant in 1826 to account. The defendant pleaded, that in June 1819 he made an open and peaceable entry upon the mortgaged premises, for the non-performance of the conditions, and took actual possession thereof, and had continued the open and peaceable possession of the same for the term of three years, and until the filing of the plaintiffs’ bills.
    In regard to the first case, it appeared in evidence, that in June 1819, one Wild, at the request and as the agent of W. S. Skinner, but without any letter of attorney, went with the defendant upon the mortgaged premises, and gave him possession in the presence of two witnesses, and directed the tenants thenceforward to pay the rents to the defendant; that they accordingly did pay the same to the defendant for more than three years, without any claim on the part of W. S. Skinner; that the defendant declared, at the time of taking possession, that he entered for condition broken; and that Wild afterwards informed W. S. Skinner that he had given the defendant possession on account of the non-performance of the condition.
    The evidence in the second case differed in the following particulars. It appeared that the mortgaged premises were unoccupied ; that Wild went with the defendant only to the fence which enclosed the land, the door of the house being fastened; that soon afterwards the defendant actually went upon the land two or three times with another person, who talked of hiring it; that W. S. Skinner told the defendant, that if he did not gather die pears growing upon the land, they would be stolen, and in 1820, and in subsequent years, he did gather the fruit; that he put his cow upon the land a few times in 1821, and in 1823 repaired the fence, which had been knocked down during a fire.
    
      March 22d.
    
    
      March 26th.
    
    
      Prescott and F. Dexter,
    to the point that no sufficient en try had been made in this last case, cited Co. Lit. 218 a, 245 6, 252, 253, 254 6, and Butler’s note, 198 ; Goodright v. Cator, 2 Doug. 484.
    
      Hubbard and Cooke, for the defendant,
    cited 3 Mass. R. 155 ; 5 Mass. R. 119, 120 ; 12 Mass. R. 514; 13 Mass. R 314; 17 Mass. R. 429 ; Si. 1798, c. 77, § 1.
   Wilde J.

delivered the opinion of the Court. [After stating the plea to the first bill.] These facts are satisfactorily proved by the evidence. But the plaintiffs’ counsel contend, that these facts are not sufficient in law to foreclose the mortgage. It is said that the entry was not in pursuance of the statute, because no express declaration was made, at the time of the entry, that it was made for the purpose of foreclosing the mortgage, or on account of condition broken. But the statute does not require that any express declaration should be made, provided it appears that the entry was for condition broken ; and this appears by the testimony of Wild; who also testifies that he afterwards gave notice to Skinner, that the entry was made for that purpose, and also that the defendant declared, at the time, that he entered for condition broken. There was therefore a declaration sufficiently formal, and express notice to Skinner.

It is also objected, that Wild was not duly authorized tp deliver possession. But a special power in writing is not necessary. A request from Skinnei was sufficient. Besides, an entry by the defendant, if made peaceably, and notice to Skinner, would have been sufficient, although Wild had no authority from Skinner.

Nor was it necessary that the defendant should have his deed with him when he entered. All the statute requires is, that the entry for condition broken should be lawful, and that the possession should be continued for the space of three years ; all which is sufficiently proved.

In regard to the other case, as no actual entry on the mortgaged premises was made, when Wild delivered possession to the defendant, the evidence relating to this transaction is material only as proof of the intention of the parties, and as indicating the purpose for which the defendant afterwards entered. It appears that he soon after made an actual entry, and that the parties understood that he had possession on account of the non-performance of the condition. This possession was not so notorious as to dispense with notice to the mortgager ; but as it appears clearly that the mortgagor had notice, and consented to the defendant’s retaining possession, and that he did in fact have all the possession which the situation of the estate would allow, for the space of more than three years, we think the evidence sufficient to show a foreclosure of the mortgage.

Both bills dismissed. 
      
       The law as settled in this decision has been altered by the legislature in the Revised Statutes. See the provisions on the subject of entry by a mort gagee without judgment, m Revised Stat. c. 107, § S.
     