
    Elizabeth Dougherty vs. Vincenso Bonavia.
    Suffolk.
    March 7, 1878.
    Colt & Soule, JJ., absent.
    Where a mortgagee has obtained possession of personal property for breach of the conditions of the mortgage, the mortgagor cannot maintain replevin of the property, upon the ground that the consideration of the mortgage was illegal.
    Replevin of household furniture. At the trial in the Superior Court, without a jury, before Pitman, J., the defendant introduced evidence tending to show that the plaintiff had executed to him a mortgage of .the property replevied to secure the payment of the rent of certain premises leased by him to her; that she occupied the premises, but failed to pay the rent according to the conditions contained in the mortgage, and for such default on her part he took possession under his mortgage, for the purpose of foreclosing the same by a sale of the mortgaged property.
    It also appeared in evidence, and was found as a fact by the judge, that the premises referred to in the condition of said mortgage, to secure the payment of the rent of which the mortgage was given, were under the control of the defendant; that they were let by him to the plaintiff to be used, and he knowingly permitted her to use and occupy them, during the whole time which she did use and occupy them, as a noisy and disorderly house, a place resorted to for the purposes of prostitution and lewdness, and for selling and keeping for sale intoxicating liquors in violation of law.
    But the judge ruled that, notwithstanding the mortgage was founded in illegality and the consideration thereof illegal, the defendant having obtained possession <f the mortgaged property under it, although the foreclosure was not completed, the plaintiff could not maintain her action, and found for the defendant. The plaintiff alleged exceptions.
    
      P. H. Qooney, for the plaintiff.
    
      S. F. Keyes, for the defendant, submitted the case without argument.
   By the Court.

The defendant being in possession of the property according to the terms of the mortgage executed to him by the plaintiff, the court will not assist the plaintiff to recover the property upon the ground that the consideration of the mortgage was illegal. King v. Green, 6 Allen, 139. Harris v. Woodruff, ante, 205. Exceptions overruled.  