
    Doe d. Henry F. Hall and Wife et al. v. George Tunnell, Tenant in possession.
    A mortgage executed and acknowledged in 1808, and recorded, but without any entry as to the time when it was recorded, held to have been recorded within a year after its execution, as it appeared from the record to have been recorded at an early day, and the law then required no such entry to be made.
    As between the mortgagor and mortgagee, a mortgage is only a security for the payment of the debt, and does not absolutely convey the legal title in the premises to the mortgagee, so long as the mortgagor continues in possession of them; but it is a lien of so high a nature, that it is not divested by a sale of the premises on a judgment subsequently obtained ; yet if the mortgagee is in possession after condition broken, it is no longer in the power of the mortgagor, or any one claiming title under him by virtue of a sale on such a judgment, to recover the possession in ejectment. The only right which the purchaser acquires in such a case, is to redeem the premises by paying the mortgage. Because the mortgagee in that case is the holder of the legal title; but if the mortgagor is in possession, the sale on the judgment will convey the legal title to the purchaser subject to the mortgage.-
    If the mortgagor and mortgagees be living together in possession of the premises after condition broken, it is not a case of mixed possession, as between tenants in common, in which the law will adjudge the possession to the mortgagees, as the holders of the legal title. In such a case, the possession must be in one or the other, and there can be no mixture of possession between them in their relation as mortgagor and mortgagees, which would divest the mortgagor's actual possession of the property.
    This was an action of ejectment to recover a house and lot in Lewes, formerly the property of Isaac Turner, against whom Caleb Bodney held two judgments, one recovered on the 27th of April, 1809, and the other at the April Term, 1835, on a bond executed September 15th, 1802, on which the premises were sold by virtue of execution process, as the property of Isaac Turner, and were bought by Caleb Bodney at sheriff’s sale in 1836. Both Turner and Bodney were dead before the commencement of the action, and the lessors of the plaintiff were the heirs-at-law of the latter. Turner built and owned the house in question and lived in it up to his death in 1841. He had but two children, Hannah and Mary Turner; Hannah married John Milby, and after their marriage they continued to reside in the house with Isaac Turner and his other daughter, Mary, until their death in 1816, leaving children, who also continued for several years after their death to live with their grandfather and his daughter Mary in the house, After the death of Isaac Turner in 1841, Mary Turner be- ■ conte the sole tenant of the premises and lived in them until 1849, when she rented them to the defendant; who produced at the trial and relied upon the record of a mortgage, duly executed and acknowledged hy Isaac Turner to John Mil by and Hannah his wife, and Mary Turner, for the premises, on the 29th of January, 1808, for $600, payable in seven years; hut it did not appear at what time the same had been recorded, whether within one year from the date of the mortgage, or not.
    
      W. Saulsbury, for the plaintiff:
    The defence set up under this mortgage will not avail the other party; because where there was no possession hy the mortgagee of the premises under the mortgage, nor interest paid, nor steps taken to enforce it for a period of nineteen years," or more, the jury might presume that it had been satisfied. 10 Johns. 381. A mortgagor in possession was the actual owner of the land, and before foreclosure it was a mere security for the payment of money, and as a proof of it, the premise^ could be sold on a judgment against the mortgagor, but not on a judgment against the mortgagee. Cooch’s Lessee v. Gerry, 3 Harr. 280. But the instrument offered in evidence was no mortgage at all, for it did not appear from the record, nor had it otherwise been shown, that it was recorded within one year from its date, without which it was void as against a subsequent purchaser. 1 Del. Laws, 222.
    
      E. D. Cullen, for the defendant:
    The cases'cited did. not apply in this instance, because in those cases the mortgagees were never in possession under the mortgage,, which was not the case here; for the evidence was that the mortgagees in this case were- in the continuous possession of the house, from the date of the mortgage and before it, until the death of, the mortgagor in 1841, and that Mary Turner, one of them, had been in possession ever since, either in person, or hy her tenant, the defendant. For a mortgagee in possession after condition broken could not be dispossessed, and his title was complete and absolute at law. 4 Jac. Law Dict. 320; 12 Mass. 39; 6 Mass. 50. If a mortgagee has been in possession twenty years, a court of chancery, in analogy to the legal principle which bars an action of ejectment, will not permit the mortgagor to redeem; and where the interest on the mortgage has not been paid, the mortgagee becomes entitled to the land, and may maintain ejectment for it. 2 Cruise, 78. The mortgagor after forfeiture has no right or title to the premises, but the right to redeem by the payment of the debt; and a purchaser with notice has ho other right. 9 Wheat 248; Adams on Ejectm. 60. Isaac Turner and the mortgagees, all being in possession as tenants in common, until the death of himself and his wife, and afterwards, Mary Turner, the remaining mortgagee, continuing in possession until the present time, the possession of one was the possession of all; and even if it should be contended that Isaac Turner, the mortgagor, was also in possession with them, up to the time of his decease, then it was the ease of a mixed possession between them, in which the law would adjudge the possession to those who had the legal right, that is to say, to the mortgagees. Mary Turner having been in the sole possession of the property since the death of her father, as mortgagee under the mortgage, she is entitled to retain it against the mortgagor, and all persons claiming under him, unless it could be shown that the money secured by the mortgage had been paid. Caleb Rodney was but the assignee of Isaac Turner, the mortgagor, and after condition broken could not maintain ejectment against the mortgagee, hi or would the presumption of payment of the money by the mortgagor arise from lapse of time, if there was anything in the circumstances of the mortgagor to rebut the presumption, as had been abundantly proved in the present case. The plaintiff, therefore, in no aspect of the matter, was entitled to recover.
    
      W. Saulsbury:
    
    Mary Turner was not a party to the case, and although she might have been, she was not made a party; he therefore submitted that it was not competent for the present defendant to defeat the action by showing an outstanding mortgage in her and other persons, because such a mortgage would be presumed, after the lapse of so many years, to he paid and satisfied. 10 Johns. 381. The Court could not infer, nor direct the jury to presume, that this mortgage was recorded within the time prescribed by the statute then in force on the subject, because the requirement was express and positive, and it must be affirmatively shown by the party claiming under it.
   The Court,

Harrington, Ch. J.,

charged, the jury: This is an action of ejectment brought by the heirs of Caleb Rodney to recover a house and lot in Lewes, and both parties claim title under Isaac Turner; the plaintiff, by virtue of a sheriff’s deed for the premises, sold to Rodney under a judgment recovered by him against Turner in 1835, and the defendant, under a mortgage from the latter to John Milby and Hannah his wife, and Mary Turner, executed and acknowledged prior to the judgment, and as far back as the year 1808, and as the tenant of Mary Turner, of whom he rents the property. It appears from the evidence that Isaac Turner owned the house and lot, and for many years before his death, in 1841, occupied it with his two daughters, one of whom was married to J ohn Milby, the other remaining single, and that they lived in it prior to 1808 and to the date of the mortgage, the daughters nearly or quite all their lives. How they were in possession, and especially during the latter part of the time, it will be important for the jury to determine with reference to the title of the parties now claiming the property.

It is admitted on both sides that prior to the month of January, 1808, Turner owned the property and was in possession of it. On the ninth of that month he mortgaged the premises to John Milby and wife arid Mary Turner, his children, for $600, payable in seven years—that is to say, in 1815. The effect of this mortgage, if it was recorded within twelve months from its date, was to create a lien on the property for the amount of money designed to be secured by it, and after it fell due and was unpaid, to give the mortgagees a right to foreclose the mortgage and sell the property for the payment of it, or to turn the mortgagor out of possession by ejectment, if he was then^ in possession. In regard to the recording of the mortgage, we have to say to you that the law then in force on the subject allowed it to be recorded within one year from the ■ execution of it, but did not require the recorder, as at the present time, to enter upon the record the time of recording it. But as the mortgage was executed many years ago, and appears from the record to have been recorded at an early day, we deem it the duty both of the Court and the jury, under the circumstances, to presume that it was recorded within the time prescribed by the act, as a contrary assumption would impute to the recorder a breach of his duty and a violation of the law in recording it after-wards.

If, however, the children were in possession of the property as mortgagees after the money was due, they had a right to keep the possession even as against the father, whose title was by this breach of the condition of his mortgage turned into a mere right of redemption on payment of the money. The possession therefore subsequent to 1815, and particularly after 1835, a period of twenty years having intervened, is a fact of material importance in the case; because if Milby and his wife, and Mary Turner, or either of them, were in possession of the property after 1815, claiming under the mortgage, the money not being paid, Isaac Turner himself, if now living, could not put them out by ejectment, and, of course, no one claiming his title by virtue of a sale on a judgment recovered subsequent to the execution of the mortgage can do it. If such was the case, all the right which Caleb Rodney acquired by virtue of the sheriff’s sale on his judgment against Isaac Turner, the mortgagor, was merely a right to redeem the property by the payment of the mortgage debt, but which was not sufficient to sustain an action of ejectment against a mortgagee in possession. But notwithstanding the fact that the mortgage was executed in 1808, long before the recovery of the judgment by Caleb Rodney against Isaac -Turner for $208.95, which was- on the 19th of October, 1835, on which the premises were sold and bought by Rodney, in April, 1836, and also the fact that the mortgage was forfeited by the non-payment of the money long before the judgment was obtained, if the children of Turner, or either of them, were not in possession of the premises as mortgagees under the mortgage, but the mortgagor, the father, was still in possession as the owner up to the time of his death, in 1841, then the sale and conveyance of the property by the sheriff, under the judgment to Rodney, would pass the title to him subject to the mortgage,-and the plaintiff would be entitled to recover it in the present action of ejectment.

A mortgage, as between the mortgagor and mortgagee, so long as the former continues in possession of the mortgaged premises, is merely a security for the payment of money, and does not absolutely convey the legal title to the premises, but it is a lien on the property of so high a nature that it is not divested by a sale on judgments subsequently obtained against the mortgagor; yet if the mortgagee is in possession under the mortgage, and the condition of it be broken, it is no longer in the power of the mortgagor, nor of any one claiming his title by virtue of a sale on such a judgment, to recover the possession in ejectment. His only right in such a case, as we have before said, is to redeem the premises by paying the mortgage.

The. question of fact, therefore, whether John Milby and Hannah his wife, and Mary Turner, or either of them, were in possession of the property before or at the time when Rodney’s judgment was recovered, holding it as mortgagees under their mortgage, is the material point on which the case depends; because if such was their possession,they were then the owners and holders of the legal title; but if otherwise, then they were the mere holders of a legal security, with a lien on the property through the mortgage for the payment of it. In the latter case, Mr. Rodney’s judgment would sell the premises subject to the mortgage; in the former, it would merely sell the right to redeem the property on the payment of it. And it will thus be seen that we regard the case as if Mary Turner ■were the defendant in the action, since the actual defendant is alleged to be her tenant; but whether he is or not, the plaintiffs must recover, if at all, on the strength of their own title, and the law invalidates that title to recover against any one, if the actual legal title can be shown to be outstanding in a mortgagee in possession after condition broken.

As to the point suggested in regard to the possession in this case being a mixed possession of the premises by the mortgagor and mortgagees, as tenants in common, the principle of law as to presumptions does not apply in such a case -as this; because there cannot he for this purpose a mixed possession between such parties as tenants in common. The possession was either in the mortgagor or in the mortgagees, as mortgagees; they could not both have possession in their opposite characters, and there could be in contemplation of law no mixture of possession as tenants in common between them in their relation of mortgagor and mortgagees; which would divest, in that case, the mortgagor’s actual possession of the property. And as to the relation of parent and child, though the presumption would be that the child was living with the parent when under his roof, the fact might he otherwise, by their reversing their mode of living. But it is, after all, a fact for the jury to determine on the evidence, as to the condition and position of the parties, with reference to which it was not for the Court to intimate any opinion. The Court would therefore submit the question of fact before stated, and leave it to the jury to say, from the evidence, whether Milby and wife, and Mary Turner, or either of them, was in possession of the house and lot, as mortgagees under the mortgage, at the time when Mr. Rodney recovered his .judgment, in 1885, claiming and holding it as such; if so, then the plaintiff was not entitled to recover in the action; but if, on the other hand, Isaac Turner, the mortgagor, was in possession, notwithstanding they were living with him as members of his family, and continued in possession till. his death, in 1841, then the plaintiffs would be entitled to their verdict.

Verdict for the defendant, ¡y  