
    BLANEY v. BEARCE.
    As between the mortgagor, and mortgagee, the fee of the estate passes to the mortgagee at the execution of the deed ; and he may enter immediately, or have a writ of entry against the mortgagor ; unless there be an agreement in writing between them that the mortgagor shall retain the possession and receive the profits.
    But as between the mortgagor and other persons, he is considered as still hav-> ing the legal estate in himself, and the power of conveying it to a third per-, son subject to the incumbrance of the mortgage.
    Where an absolute deed of real estate is given, and a bond executed by the grantee at the same time, though bearing a subsequent date, to convey the same land to the grantor, upon payment of a certain sum, the two instruments are to he taken as constituting a mortgage. Semble.
    
    Whether the mortgagee, after he has lawfully entered into the mortgaged premises, and before the right of redemption is foreclosed, has a right to cut down and carry away, for the purpose of sale, any timber or other trees growing thereon — qucere. .
    Trespass quart clausum fregxt. The defendant pleaded soil and freehold in himself, which was traversed, and issue taken thereon.
    The defendant offered in evidence a deed from the plaintiff to Samuel Woods, dated July 14, 1819, conveying the locus in quo, with general warranty; — and an assignment on the back of said deed dated November 7,1821, by which the said JYoods assigned to the defendant all his estate in the premises, together with a note of hand for $2,800 given by Blaney to him dated July 15,1819, — subject however to a bond given by Woods to Blaney dated July 15, 1819, binding himself to convey the premises to. Blaney upon payment of the amount of the note.
    The plaintiff then read in evidence the bond aforesaid, which it was agreed was executed at the same time with the deed from Blaney to Woods, — the condition of which set forth that whereas Woods had on that day bargained and sold to Blaney the land in question, and Blaney had in consideration thereof given to Woods his note of hand for $2,800 payable in one year, therefore if after the payment of the said note, and within eighteen months from the date of the bond, Woods should, upon request, convey the premises to Blaney, and also permit Blaney peaceably to receive and take to his own use the rents and profits of the premises and every part thereof until such conveyance^ then the obligation to be void.
    
      Upon this evidence the Judge who presided at the trial, intending to reserve the questions of law arising in the qpse for the consideration of the whole Court, directed a verdict to be returned for nominal damages'for the plaintiff, which was to stand if, in the opinion of the Court, the action was maintainable, otherwise to be set aside.
    , Bailey, for the defendant.
    The intent of the parties so far as it can be collected from the evidence in the case, was to give Woods the best possible security for his debt, by a conveyance absolute in its terms. The bond for reconveyance was probably dated subsequent to the deed, for the express purpose of avoiding its operation as a defeasance. And it contains in itself no apt words either of defeasance or of conveyance; but is merely an engagement to execute a deed upon payment of the purchase-money. The title therefore being absolute in Woods and by him assigned to the defendant, his entry was lawful, he being the owner of the soil.
    
      Allen, for the plaintiff.
    The plea having admitted the possession to be in the plaintiff, the question is upon the title of the defendant to the freehold. In the instrument of July 15, Woods declares that he k! has this day bargained and sold” the premises io Blaney, and stipulates for his quiet pernancy of the rents and profits. By the words “ bargained and sold” the estate passed from Woods to Blaney, subject to be defeated on Woods’ cancelling the note, or tendering it to him when the day of payment should arrive. Jackson v. Smith, 10 Johns. 456. 11 Johns 498. And the negotiable note given by Blaney, was sufficient consideration for the conveyance^
    But if the estate was not reconveyed by Woods to Blaney, then the latter never parted with his whole estate, but the transaction is to be taken as a mortgage to Woods to secure the payment of his debt, in which case the freehold is in the mortgagor till entry for condition broken. It has never been decided by our Courts that the fee is in the mortgagee till such entry, pursuant to our statute, or till entry under a writ of possession, for foreclosure. Prior to this period the relation of the parties is merely that of debtor and creditor. The debt is the principal thing, the mortgage only a security for its payment. The reading of the late Judge Trowbridge to the contrary must be considered as conlroled by the subsequent'statute of 1788, ch. 51. If the law were otherwise, the mortgagee might ruin the pledge. If he can cut trees he may cut all the trees on the land, and even remove the buildings, without remedy; — for we have no Court with power to grant an injunction to stay waste; and an action of the case in the nature of waste may be fruitless, if the mortgagee be unable to respond in damages. On this point the decisions of New-Yorlc are- with us. Runyon v. Mersereau, 11 Johns. 634. So in Goodwin v. Richardson, 11 Mass. 474, the mortgagee has only the right of acquiring an estate. If he had a freehold, it would go to his heirs, not to the executor; — yet the Stat. 1788, ch. 51, makes provision for the case when the mortgagee dies before having acquired seisin of the land; — and the executor, and not the heir, may release the land, on payment of the money, and may recover seisin by process of law, as though the testator had died seised of the land, for the purpose of making sale for payment of his debts. If the fee were in the mortgagee, his widow would be entitled to doAver in the premises, — and it might be taken for his debts. Yet the reverse of this is the settled laAv. Blanchard v. Coburn, 16 Mass. 345. His interest in the property <may be transferred by delivery over of the note and deed; and therefore it is but a chattel. Green v. Hart, 1 Johns. 580. Rex v. St. Michaels, Doug. 632. So it is the interest of the mortgagor that gives him a settlement as a freeholder. The mortgagee gains no settlement by his mortgage. Groton v. Boxborough, 6 Mass. 52. Nor is it necessary that the rights of the mortgagee should be thus extended,— for he may ahvays enter for condition broken; or before breach, by process of law; — but if the estate be a pledge for security of the debt, it ought not to be in his potver to destroy it.
    
      Wilson, in reply.
    The laAV on this subject is well settled in Massachusetts in Shaw v. Loud, 12 Mass. 447, and some other decisions, that the freehold is in the mortgagee. And thes.e cases must govern, notwithstanding the decisions in other States, because they form part of the common law of Maine, and are founded on statutes which are copied into our own code. The only case cited from Massachusetts to the contrary, was not between parties or privies to the deed of mortgage ; — and it is conceded and settled that as against strangers, the mortgagor may have rights, which he cannot claim against the mortgagee.
   Mellen C. J.

delivered the opinion of the Court.

The only question put in issue by the pleadings in this case is, whether, at the time of the alleged trespass, the soil and freehold of the locus in quo was in the defendant as he has stated in his plea in bar.

In order to decide this question, it seems necessary to examine several points which have been made in the argument.

The defendant relies on the deed from Blaney to Woods, dated July 14, 1819, and on the deed of assignment from Woods to the defendant, dated November 7, .1821, as proof of his title.

The plaintiff relies on the instrument bearing date July 15, 1819, and signed by Woods, which is in the form of a bond with a condition. — The plaintiff’s counsel contends that this instrument contains language amounting to a grant of the locus in quo from Woods to Blaney. — The expression ih the instrument alluded to is in these words. “ Whereas the above nam- “ ed Woods has this day bargained and sold unto the above- “ named Blaney a certain farm,” &c. describing the before mentioned premises. It is urged that this reconveys the premises to Blaney, and proves the issue on his part. We are well satisfied that this construction cannot be admitted. The whole instrument must be examined, and taken together; and such a construction given, as to render it sensible and consistent.

A part of the condition of the instrument speaks of a conveyance of the estate by Woods to Blaney to be made on a future day, and on the performance of certain conditions. The plaintiff, therefore, cannot maintain this ground.

The next point urged by plaintiff’s counsel is, that as the deed from Blaney to Woods, and the bond from Woods to Blaney, were executed at the same time, they both constitute but one contract, and render the deed from Blaney to Woods a mort gage. And in the argument, the defendant’s counsel has viewed the conveyance in this light; and therefore it is unnecessary for us to give any opinion respecting it; because, if it be not a mortgage, it is perfectly clear that the title is in the defendant.

The next inquiry is, whether, at the time of the supposed trespass, Blaney had any special rights, beyond those belonging to mortgagors in general, in consequence of the provisions in the condition of the bond. By these provisions, the debt was to be paid in one year from the date of the bond ; and after such payment, and on request, Woods was to make and execute a deed of the land to Blaney; and to permit and suffer Blaney peaceably and quietly to receive and take to his own use the rents and profits of the premises, until such conveyance should be made and executed. By this clause, we must understand that each party intended to perform his engagement according to the terms of it; and on this principle Blaney was to retain the possession and receive the profits of the land for the term of eighteen months from the date of the bond, unless he should receive a conveyance before that time, pursuant to the condition ; though, if he had paid the money at the time appointed, no conveyance would have been necessary ; the estate would at once have revested in Blaney. But wé must not give such a construction to the condition as to enable Blaney to take advantage of his own wrong; and by neglecting to perform his own engagement, continue his right of occupation and perception of profits, to the exclusion of the mortgagee or his assignee from the premises.

We are therefore satisfied that the special terms of the condition could have no effect upon the rights of the assignee of the mortgage, (it being admitted that the debt due from Blaney to Woods has never yet been paid) after the expiration of said eighteen months. It also appears that the supposed trespass was not committed until after that time.

In this view of the cause it results, that at the time of the alleged trespass, the defendant, as assignee of the mortgage, had a right to enter on the premises, for breach of the condition, in the manner by law prescribed ; but it does not appear that he then or at any time afterwards did enter for such purposes.

The remaining question is, whether at the time above mentioned, the entry of Beárcc on the lands mortgaged for any other purpose than a foreclosure of the mortgage was justifiable; or in the language of the plea in bob; whether the soil and freehold of the close was in Bearce„

It has been contended by the counsel for the plaintiff, that until an entry for breach of the condiliori, made pursuant io law, the legal estate remains in the mortgagor;^and he has cited several authorities to support this position.

In examining this question, we must keep in view a distinction of importance ; and one which may prevent confusion of ideas on the subject. The distinction is this. As between the morígagor and mortgagee, the fee of the estate passes to the mortgagee at time of the execution of the deed ; and the mortgagee may enter immediately or maintain a writ of entry against the mortgagor, unless there be an agreement in writing, on his part,” that the mortgagor may retain the possession arid receive the profits. In support of this principle, we may cite Groton v. Boxborough, 6 Mass. 50. Gould v. Newman, 6 Mass. 231. Scott v. McFarland, 13 Mass. 309. Pomeroy v. Winship, 12 Mass. 514. Goodwin v. Richardson, 11 Mass. 469. Nawhall v. Wright, 3 Mass. 155. Colman v. Packard, 16 Mass. 39. 4 Johns. 216 and 6 Johns. 290.

But as between the mortgagor and other persons, he is considered as still having the legal estate in him, and the power of conveying' the legal estate to a third person, subject to the incumbrance of the mortgage. In support of this principle we may cite Wellington v. Gale, 7 Mass. 138. Kelly & ux. v. Beers, 12 Mass. 387. Porter v. Millet, 9 Mass. 101, and the before mentioned case of Goodwin v. Richardson.

In the case of Blanchard v. Coburn, cited by the plaintiff’s Counsel, and in 4 Johns. 41. a stranger to the mortgage deed was attempting to derive the fee of the estate to himself by a levy of an execution on the lands as the estate of the mortgagee. The Court decided against his title; but in giving th'eir opinion, they expressly notice the distinction which we have .before stated, between the estate of the mortgagor in relation to the mortgagee,and in relation to the rest qf the world. In Smith v. Dyer, the Court only decided that the heirs of a mortgagee could not maintain an action on the deed against the mortgagor. The statute giving such action to the executor or administrator of the mortgagee.

According to the principles recognised or established in the foregoing decisions, the legal estate in the close in question, as between Blaney the mortgagor and Bearce the assignee of Woods the mortgagee, was at' the time of the supposed trespass, in Bearce; and he had a legal fight to enter on the premises for breach of the condition. And if he had a right to enter for such purposes, the entry was lawful, though he entered without executing his purpose, or even for other purposes. It is true, the entry, unless’ made in the mariner prescribed by law, could not operate as an entry to foreclose but still it was a lawful act on the part of Bearce. And as the jury" gave only one dollar damages, which in the report are called nominal' damages, we are not to presume that any act was doné by the defendant on the land, inconsistent with the nature of the estate which he had as assignee of the moftgageé.

It is not necessary in this casé to decide, and we do not decide, whether a mortgagee, who has entered into possession' of mortgaged premises, before or after the breach of the condition, has a right to cut down and carry away timber trees or other trees for the purpose of sale, growing on the premises. Such a case may require the examination of other’ principles and further consideration.'

For these reasons, we are of opinion that on the' facts before us, the action is'not maintainable; and accordingly the verdict must be set aside,'and a new trial granted.'  