
    Gilman Taylor versus Ebenezer Weld and David Townsend.
    When, upon a bill in equity brought by a mortgagor for possession of the mortgaged premises, it shall appear that there is a balance due from the mortgagee to the mortgagor, the latter cannot have judgment and execution for such balance upon his bill in equity, but is put to his action at law.
    The Court having, in the former decree made in this cause, fonte, vol. v. 125,] reserved any further hearing in the case upon the report of the commissioners, (appointed to take an account of the rents and profits of the mortgaged * prem- r * 265 J ises, together with all equitable demands of each of the parties upon the other,) as to the rents and profits of the premises while in the hands of said Townsend, which the said commissioners reported greatly to exceed the expenses of repairing the same, and the action having been continued to this term for such hearing, —
    
      Whitman now moved for judgment and execution against the defendant Townsend, for the balance found to be due by the commissioners ; and he insisted that the power of the Court under tho statute  was competent to this purpose. The third section of the statute authorizes the Court, “ on consideration of the several pleas and allegations made by either party, to decree and enter up judgment therein, agreeably to equity and good conscience, and to award execution accordingly.” These words are very broad, and can by no sound construction be confined to a mere judgment for seisin and possession. The intention of the legislature must have been to clothe the Court quoad hoc with all the powers of a court of equity, and precedents from the chancery must be considered as authorities in the case. Here Whitman cited the authorities in the margin.  And upon a doubt being expressed by one of the Court, whether the plaintiff had made a sufficient prayer on application for the relief contemplated by the present motion, Whitman suggested that the plaintiff had alleged his damages in his original writ at-dollars, and in his replication had again prayed for his damages, which he contended comprehended the rents and profits sought for by his motion. 
    
    
      Jackson, for the defendant
    
      Townsend, contended, that the Court had not the power, which by this motion they were solicited to exercise, even if the prayer had been contained in the bill, which had no such petition. The passage alluded to in Hine is directly against the plaintiff, purporting that the relief granted must have been prayed for in the bill. The case from Vesey has no application to the question; that from Atkyns is merely a decision, that where a party is entitled to damages, he may have them up to the time of the * final decree; and that from [ * 266 ] Finer imports no more than that rents and profits are recovered as damages, and not as debt.
    But let English authorities be as they may, this question must rest altogether for its decision on the statute, which gives to the Court all the jurisdiction it possesses in the case. The whole authority of the Court extends only to compel the mortgagee to release the premises to the mortgagor, when he shall have performed the condition of the mortgage. Rents and profits are mentioned but once, and then only incidentally, as entering into the calculation of the final balance, if any, due from the mortgagor to the mortgagee.
    If the Court have the authority in question, the plaintiff has not asked for its exercise here. The damages alleged in the writ arc merely introduced to conform to the form of a writ of attachment, in which the bill in equity is directed by the statute to be inserted. The same thing happens, absurdly enough, when, in a writ of right, the demandant is obliged to allege some tort to connect his count with the writ prescribed.
    This demand to the plaintiff is equivalent to an action of assumpsit for mesne profits. But in such an action we should have the benefit of Weld’s testimony, by which we should show the plaintiff’s conveyance to be fraudulent, for the purpose of cheating his creditors ; and in such case, he could not take advantage of bis own fraud. In such an action, too, we should have a right to a jury to ascertain the money due, if any.
    
      Dexter enforced the observations made by Jackson; and he contended that the whole object of the statute, as it applied to this subject, was to furnish the mortgagor compulsory process to obtain possession of the land mortgaged upon such an adjustment of the demands of each party as equity and good conscience should require. This construction was the more reasonable, as the plaintiff had still his action at law for the rents and profits he might suppose to be due.
    [ * 267 ] *The constitution of the commonwealth secures to the citizens a trial by jury in all controversies concerning property, except in those cases where it had been before other wise used and practised. This is not one of the excepted cases; and if the legislature had in terms given to the Court the power claimed for them by the plaintiff, the act would be unconstitutional and void.
    
      Bidwell, attorney-general, in reply. The objection from the declaration of rights goes to the whole statute. But it is believed that the article alluded to has never received so broad a construction, nor did the makers of it intend that it should.
    The words of the statute are sufficient to authorize the Court to do, on the whole subject of the mortgage, what belongs to equity and good conscience; and very great inconvenience must arise, if part of the cause is to be determined at law, and the rest in equity. The whole is a business in equity.
    As to the defect in the form of the plaintiff’s demand, every thing substantial is alleged. It was not necessary to allege or prove that the defendant has received any money, but merely that the plaintiff has sustained a damage by the detention, and the real amount in value of such damage.
    
      
       1798, c. 77.
    
    
      
      9) Hine s Chanc. 17. — 2 Ves. 266. — 3Atk 582.
    
    
      
      
        Vin. Abr. Tit. Damages, H. 3.
    
   Sedgwick, J.,

afterwards pronounced the decree of the Court as follows: —

This is a suit in equity founded on the statute of 1798, c. 77, entitled “ An act in addition to an act entitled an act for giving remedies in equity.”

It was brought against Weld and Townsend, but in the present question, Townsend alone is interested, with the plaintiff.

The plaintiff alleges in his bill the mortgage to Weld, an assignment by him to Toionsend, and such facts as, if true, prove that the possession is wrongfully detained, * and concludes [ * 263 ] in the form rendered necessary by the statute, which requires a bill in equity tobe inserted in a writ of attachment or original summons, that the withholding of the possession is to his damage.

It has been determined that these allegations are true; and therefore the plaintiff has been restored to his possession.

During the investigation, it has been rendered as certain as it was competent to the Court to do it, by the intervention of commissioners, appointed for that among other purposes, that the de fendant Townsend is equitably indebted to the plaintiff, in a con siderable sum of money, for the rents and profits of the mortgaged premises, over and above all that he has laid out upon them. Under these circumstances, a motion is made by the plaintiff, in substance, that the Court award execution for the balance found due from Townsend to Taylor.

It is certainly equitable, that what Townsend may have received beyond what he has fairly expended, should be paid over to Taylor. But the defendant’s counsel say the payment cannot be compelled in this suit, —

1. Because, by the statute, the Court is not authorized to award an execution against the mortgagee, or his vendee, for any such balance as is in this case found due to the mortgagor; but that its power, as to awarding execution, is confined to a restoration of the possession and costs.

2. Because, if the statute does empower the Court to award execution for a balance found due from the mortgagee, or his vendee, yet that it is requisite to the exercise of that power, that the mort gagor should expressly allege in his complaint, that a balance is due, and that he should demand it.

3. Because, by the declaration of rights, the defendant is entitled to a trial by jury, before he can, in such a case as the present, be adjudged to be indebted to the plaintiff.

As to the first question, whether the Court is authorized to award an execution in this case, it must depend on a construction of the statute.

[ * 269 ] * The statute, so far as respects the subject before us,

is intended to protect and secure a mortgagor’s right of redeeming mortgaged premises; and to give an effectual remedy, whenever the mortgagee, or his vendee, shall withhold the possession, contrary to equity and good conscience. It provides that, when there has been an entry for the condition broken, in substance that, at any time within three years after such entry, upon performance, or tendering performance, of all that the mortgagee, or his vendee, have a right in equity to require, it shall be the duty of the mortgagee, or his vendee, to restore the possession, and to execute a deed of release to the mortgagor; and if, upon such performance or tender, the mortgagee or vendee shall refuse or neglect to restore the possession, and release his right, the mortgagor may have his bill in equity. — This is the only provision which gives the remedy, which is sought by this suit; and it is in principle the same which was before provided by the provincial statute.

From this detail it appears that the remedy which is given applies only in a case where, upon performance, or tendering performance, by the mortgagor to the mortgagee, or his vendee, the mortgagee or vendee shall refuse to restore possession, and make a release ; or, in other words, it regards only revesting the possession in the mortgagor, when he is equitably entitled to it; and, of consequence, if, upon performance, or tendering performance, the possession is restored, no suit for the purpose expressed in the statute is necessary, nor is any provided. From hence it is evident, that by this suit, the hill, to which the plaintiff is entitled, is not intended to extend, be yond a demand of the possession, to a demand for a balance, which may be equitably due from the mortgagee, or his vendee, to the mortgagor.

But it is said, that although the first section of the statute might not, if considered by itself, be construed to extend the [ * 270 ] remedy beyond a restoration of the .possession, * yet that, taken in connection with the second section, it will authorize a construction to do complete justice to both parties; and that a liberal construction for that purpose ought to be given. And I think that a provision, by which full and complete justice could be done, is desirable, and would be convenient; because it would, in a case circumstanced like the present, prevent the necessity of two suits instead of one, to render to die plaintiff that justice to which he is entitled. But, whatever our wishes may be, we cannot exercise a power which the legislature has seen fit to withhold. The question is, whether we have power, by this statute, to award an execu tian for the balance found due to the plaintiff.

The first section does not, as has been shown, extend the remedy to this object, but, on the contrary, limits it to the possession. — Is the power of the Court enlarged by the second section ? I think not. The second section enacts “ that the justices of either of said courts are hereby authorized to receive and hear every such cause as shall be brought before them as aforesaid; and on consideration of the several pleas and allegations made by either party, &c., to decree and enter up judgment therein agreeably to equity and good conscience, and to award execution accordingly.” These recited words are all which throw any light on the question before us; and it is insisted by the plaintiff’s counsel, that they authorize the construction contended for. But that, to my mind, is not the just construction.

The Court is authorized to hear every such cause as shall be brought before them as aforesaid. Now, what is the “cause” brought before the Court “ as aforesaid ” ? There is an express reference to the cause defined and described in the preceding section; and that “cause,” it. has been already shown, is confined to the possession. And the Court is “ to decree and enter up judgment therein,” — that is, in the “cause” so limited, — “agreeably to equity and good conscience.”

* From this view of the subject, we are perfectly satis- [ * 271 ] fled that we cannot grant the relief which is asked for by the motion which we have had under consideration. This opinion supersedes the necessity of considering the two other questions that were made by the defendant’s counsel; and the result of it is, that the plaintiff take nothing by his motion.

The following decree was then entered: —

And now, the motion aforesaid of the said Taylor being considered and understood, because it appears to the Court here, that the same Court is not by law authorized to award an execution, as by the said motion is prayed for, it is further decreed that the said motion be disallowed. 
      
       It will be recollected that the chief justice did not sit in the hearing of this cause
     
      
       10 Will. 3, c. 14, Appendix to vol. ii. of Mass. Gen. Laws. 985
     