Frederick W. Botham versus Joel M'Intier, 19 Pick. 346

Shaw C. J. delivered the opinion of the Court. The plaintiff claims title to the premises, on the ground that the estate was mortgaged by the tenant to Elijah M‘Intier, that the mortgagee, having obtained a general judgment upon his seisin, but not as mortgagee, entered under that judgment, and immediately gave notice to the mortgagor, that he would hold for condition broken, that three years elapsed from that time, by which the mortgage was foreclosed, and the estate became absolute in the mortgagee, and that the demandant levied his execution on the premises, as the property of Elijah M‘Intier, the mortgagee.

This claim would constitute a good title, if the facts supported it. But it appears that after the entry and notice to hold for condition broken, and before foreclosure, the mortgagee was put under guardianship as a spendthrift, and the guardian, by an agreement with the mortgagor, the tenant, put him into possession, to hold as he had held the same before the entry of the mortgagee, and for the purpose of having him perform the condition, which was a continuing one, that of supporting the mortgagee and his wife.

If this restoration of the, possession, by the guardian of the mortgagee to the mortgagor, for the purpose of defeating the operation of the mortgagee’s entry and notice, and of preventing the- foreclosure of the mortgage by lapse of time, were legally sufficient for that purpose, then it is very clear, that the mortgagee did not acquire an absolute estate, and the levy of the demandant was inoperative and void.

This presents two questions ; first, whether the like acts, if done by the mortgagee himself, would have done away the effect of the entry and notice, and prevented the foreclosure ; and if so, secondly, whether this could be done, to the same effect, by a guardian. The estates of a mortgagee, before and after entry for condition broken, are not materially different; in both cases they are redeemable on payment of the debt or performance of the condition.

Entry and notice are acts in pais, the effect of which is to give operation to the statute ; but it is the force and effect of the statute that works a foreclosure. It has long been held, that where a mortgagee is already in possession, and so cannot make an entry on himself, notice that he will hold for condition broken is sufficient and equivalent to an entry for condition broken, to give effect to the statute. Scott v. M'Farland, 13 Mass. R. 313; Newall v. Wright, 3 Mass. R. 138.

So, by parity of reason, when by law he has a right to hold under his general seisin, but does not mean to hold for condition broken, notice to that effect would be effectual. But the case does not rest here. It appears, that the possession was actually delivered to the mortgagor, to hold of his former estate. It is perfectly clear, therefore, if this was well done, that the possession was not continued three years, and therefore the statute did not take effect to foreclose the mortgage.

No release was necessary ; the relinquishment of the possession to the mortgagor prevented the three years’ continued possession, which alone could foreclose the mortgage. The only serious question is, whether this could be lawfully done by the guardian ; and the Court are of opinion that it could. The guardian is appointed for the express purpose of taking care of the property of the ward. Had the mortgage been redeemed, the guardian would have been the party to receive the money and give a discharge. Parker v. Lincoln, 12 Mass. R. 16.

It would then have been his duty to reinvest the money, which he could do by lending it to the same mortgagor, upon the same sectirity. Might he not accomplish the same object by the simpler process of receiving the arrearages, countermanding the notice to hold for condition broken, and restoring the possession of the estate to the mortgagor, to hold upon the same condition as before a breach ? It was argued, that this was not within the power of the guardian, because by so doing he prevented his ward from foreclosing the mortgage and thus acquirng a more valuable estate and interest in the premises.

The first obvious remark is, that for any abuse of authority, any mismanagement of the property of the ward, the guardian is responsible, and has given bond to secure that responsibility. But the more decisive answer is, that no such sacrifice of the interest of the ward is shown. The case supposes, that the estate is worth more than it was mortgaged for ; but the mortgagor had still ample time to redeem, and in the case supposed, no doubt would have redeemed, bad no arrangement been made to prevent a foreclosure. Newton, for the demandant, cited Blanchard v. Colburn, 16 Mass. R. 345.

Child, for the tenant, cited Stearns on Real Actions, 35; Thayer v. Smith, 17 Mass. R. 429; Ellis v. Essex Merrimack Bridge, 2 Pick. 243. On the whole, the Court are of opinion, that the mortgage was not foreclosed, and that the demandant’s levy was void. Judgment on the verdict for the tenant.