Lewis Flagg versus Lyman Flagg.
Where the condition of a mortgage by deed poll wag, that if the mortgager should occupy and cultivate the mortgaged premises and cause to be delivered annually to the mortgagee during his life, one half of the produce, in the following manner, viz. the hay &c. to be deposited in the barn &c. standing on the land mortgaged, the deed should be void, it was held that such condition operated, either by estoppel or by way of reservation, to vest the exclusive right of occupation and possession in the mortgager, so that if before condition broken the mortgagee should enter and disturb the mortgager’s possession, except for the purpose of taking away his own share of the produce, he would be liable to an action of trespass.
Trespass for breaking and entering the plaintiff’s close and encumbering his barn by depositing there four tons of hay, against his will and to his damage.
The defendant pleads in bar, that the close and barn, at the time when the supposed trespass was committed, were the soil and freehold of Earle Flagg, and that the defendant, as the servant of Earle and by his command, broke and entered, &c. and deposited the hay, as he lawfully might do.
The plaintiff replies, that all the right and title of Earle was by virtue of a mortgage deed given to him by the plaintiff, dated December 5, 1820, in which it is agreed that the plaintiff should retain possession of the close and bam and occupy and improve the same until he should neglect to perform the conditions of the deed, and the plaintiff avers that all the conditions thereof have hitherto been faithfully performed by him, and that by virtue of the agreement he before and at ,the time when &c. became and continued possessed of the close and barn, until the defendant, of his own wrong, broke and entered, &c°.
The defendant, in rejoining, craves oyer of the mortgage deed, which is set forth ; the condition being, that if the plaintiff, his executors or administrators, shall occupy and cultivate the mortgaged premises according to the rules of good hus bandry and deliver or cause to be delivered annually to Earle during his natural life, and to Earle’s present wife if she should survive him, one half of all the produce of the mortgaged premises, in the following manner, viz. the hay to be put into the barn, &c. the corn &c. into the granary &c., the deed *485shall be void; the defendant then avers that the close and barn mentioned in the replication, and in which the supposed trespass is alleged to have been committed, are the same barn which is mentioned in the condition of the mortgage deed.
Oct. 13th
Oct. 12th
To this rejoinder the plaintiff demurs.
Brooks,
in support of the demurrer, cited Jackson v. Myers, 3 Johns. R. 388 ; Jackson v. Blodget, 16 Johns. R. 172 ; Stewart v. Doughty, 9 Johns. R. 108 ; 2 Bl. Com. 379.
Washburn,
on the other side, contended, that although according to the deed it was expected that the mortgager would continue in the possession of the mortgaged premises, yet the mortgagee had a right to enter at any time, there being no express covenant to restrain him. Colman v. Packard, 16 Mass. R. 39 ; Groton v. Boxborough, 6 Mass. R. 52 ; Reed v. Davis, 4 Pick. 216. This was not an indenture, but merely a deed poll, containing a condition in favor of the mortgager, to prevent a forfeiture, but no covenant to be performed by the mortgagee. Goodwin v. Gilbert, 9 Mass. R. 514 ; Gray v. Blanchard, 8 Pick. 288. The covenant, if any, is only to the extent, that the mortgagee shall not so exercise the rights of a mortgagee as to hinder the mortgager from performing the condition. Nor has the mortgagee, by the defendant as his servant, done any act inconsistent with such covenant. The deed may show that the mortgager was to occupy and cultivate the land, but it gives him no right to possess and occupy the barn, except for the purpose of storing half of the produce for the mortgagee; the mortgagee therefore had at least a concurrent right to enter and make use of the barn, and an action of trespass against him cannot be sustained. Rehoboth v. Hunt, 1 Pick. 229 ; Clap v. Draper, 4 Mass. R. 266 ; Wilson v. Macreth, 3 Burr. 1826 ; 1 Chit. Pl. 175.
Wilde J.
delivered the opinion of the Court. The general question raised by the pleadings is, whether Earle Flagg, the mortgagee, had any right to authorize the defendant to enter the close and deposit the hay, as alleged in the writ. In general, no doubt, a mortgagee has good right to enter and take possession of the mortgaged premises even before condition broken ; and he is only liable to be dispossessed by the performance of the condition at the time limited. But this *486strict right of the mortgagee is rarely exercised, and may be restrained by the agreement of the parties that the mortgager shall hold the land till the day assigned for the payment of the money or the performance of the condition. Such an agreement is usually inserted in English mortgages and may operate by way of estoppel, covenant, condition, or reservation. Such a clause inserted in the mortgage deed, or other deed made at the same time and being part of the same transaction, is undoubtedly binding on the mortgagee ; and is to receive a liberal construction, as it generally has an operation beneficial to both parties. 2 Black. Com. 158.
Now we think it very clear, that the proviso in the mortgage deed from the plaintiff, necessarily implies such an agreement. The mortgage was given solely for the purpose of securing to Earle Flagg and his wife a moiety of the income of the mortgaged premises during their lives. • It is expressly provided that the plaintiff should occupy and cultivate the prem ises for the purpose of fulfilling the condition; and this must be considered as meaning exclusive occupation. The mortgagee, by accepting an estate with such a reservation, condition or limitation, is as much estopped to deny that such was the agreement of the parties, or to set up any right inconsistent with the obvious meaning of the proviso, as he would have been if the mortgage had been made in the form of an indenture. He impliedly agrees to the proviso by accepting the estate ; and when one accepts an estate, he must take it subject to the limitations and reservations contained in the grant. The proviso therefore may operate so as to vest the exclusive right of occupation and possession in the plaintiff, either by estoppel or by way of reservation. The mortgagee had no right to enter and disturb the plaintiff’s possession, except for the purpose of taking away his own share of the income or produce of the farm. If he authorized the defendant to enter for that purpose, it should have been so pleaded. But the pleadings show that the entry was not for that purpose ; it was therefore tortious, and the plaintiff is entitled to judgment.
Rejoinder adjudged insufficient.