This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Under the common law view of the nature of a mortgage, the mortgagee is, in the absence of an agreement to the contrary, entitled to the possession of the mortgaged property, and this is generally the rule in states in which the title or legal theory of a mortgage is still held.86 In two or three states the mortgagor appears to be regarded as having the legal title, with the right of possession, until condition broken, when the legal title passes to the mortgagee for the purpose of enabling the latter to acquire the possession by action of ejectment.87 In another state decisions in terms that the mortgagee has no right to maintain ejectment against the mortgagor until condition broken, appear to involve a like view, that until then the mortgagee has not the legal title.88
79. Cholmondeley v. Clinton, 2 Jac. & W. 1, 177; Threlkeld v. Walker, 141 Ky. 737, 133 S. W. 772; King v. State Mutual Fire Ins. Co., 7 Cush. (Mass.) 7; Griffin v. Marine Co. of Chicago, 52 III. 130, 142; Ten Eyck v. Craig, 62 N. Y. 406.
80. See post, Sec. 613(c).
81. Holridge v. Gillespie, 2 Johns. Ch. (N. Y.) 30; Manlove v Bale, 2 Vera. 84. See Moore v. Titman, 44 III. 367.
82. Post, Sec. 616, notes 11-14.
83. Walthall's Ex'rs v. Rives,
34 Ala. 92; Waterson v. Devoe, 18 Kan. 223; Cameron v. Irwin, 5 Hill (N. Y.) 280; Harrison v. Roberts, 6 Fla. 711.
84. See Griffin v. Marine Co. of Chicago, 52 III. 130; Savings & Loan Soc. v. Davidson, 97 Fed. 696, 38 C. C. A. 365.
85. Kirkwood v. Thompson, 2 De Gex, J. & S. 613; Walthall's Ex'rs v. Rives, 34 Ala. 92; Harrison v. Roberts, 6 Fla. 711; Roberts v. Fleming, 53 III. 196: Woodlee v. Burch, 43 Mo. 231; Ten Eyck v. Craig, 62 N. Y. 406.
Even in states in which the mortgagee is entitled to possession, he rarely asserts this right, since he is bound, if he does take possession, to account for the rents and profits of the land,89 and there is nothing to be gained by taking possession.90
86. Brown v. Loeb, 177 Ala. 106, 58 So. 330; Wilson v. Rogers, 97 Ark. 369, 134 S. W. 318; American Agricultural Co. v. Wotton, 116 Me. 459, 102 Atl. 297; Campbell v. Poultney, 6 Gill. & J. (Md.) 94, 26 Am. Dec. 559; Lacky v. Holbrook, 11 Metc. (Mass.) 458; Gray v. Gillespie, 59 N. H. 469; Youngman v. Railroad Co., 65 Pa. St. 278; Brier Hill Colleries v. Gernt, 131 Tenn. 542, 175 S. W. 560. If the mortgage, by reason of a defect in its execution (ante, Sec. 603, note 60-61) gives merely an equitable lien, the mortgagor is entitled to the possession. Mc-Farland v. Cornwell, 151 N. C. 428, 66 S. E. 454.
87. Shields v. Lozear, 34 N. J. L. 496, 3 Am. Rep. 256 (but see Marshall's Ex'rs v. Hadley, 50 N.
J. Eq. 547, 25 Atl. 335); Bradfield v. Hale, 67 Ohio St. 316, 65 N. E. 1008; Allen v. Ranson, 44 Mo. 263, 100 Am. Dec. 282; Fontaine v. Schulenberg & Boeckler, Lumber Co., 109 Mo. 55, 32 Am. St. Rep. 648, 18 S. W. 1147; Wilson v. Reed, 270 Mo. 400, 193 S. W. 819.
88. Kransz v. Uedelhofen, 193 III. 477, 62 N. E. 239; Ladd v. Ladd, 252 III. 43, 96 N. E. 561. In Vermont the statute gives possession to the mortgager until condition broken, upon which event the mortgagee acquires the legal title and right of possession. Crahan v. Chittenden, 82 Vt. 410, 74 Atl. 86.
89. Post, Sec. 613(c).
90. See 4 Kent's Comm. 155.
In states in which the lien theory of a mortgage prevails, the mortgagee, having no legal estate in the land, would seem to have nothing on which to base a claim to the possession of the land as against the mortgagor, in the absence at least of a provision in the mortgage instrument giving him the possession.91 In the majority of these states, moreover, there is a statutory provision so phrased as to exclude or restrict the mortgagee's right of possession. In some, for instance, it is provided that the mortgagee shall not be entitled to the possession of the property,91 in some that he shall not be so entitled in the absence of an express stipulation therefor,92 in some that the mortgagee cannot recover possession before foreclosure,93 and in some that until then he cannot bring an action to recover the property.94
Effect of mortgagee's acquisition of possession.
In spite of the express acceptance of the lien theory of a mortgage, and without reference to whatever statutory provision may exist exclusive of the mortgagee's right of possession, it has been decided in several states that if the mortgagee acquires the possession of the land in a manner which the court regards as lawful, the mortgagor, after a default on his part in the performance of the mortgage obligation, cannot recover the possession from the mortgagee ex91. Florida Comp. Laws 1914, Sec. 2495 (not conveyance of right of possession); Idaho, Civ. Code, Sec. 3390 (lien independent of possession) ; North Dakota, Comp. Laws 1913, Sec. 6726.
92. Cal. Civ. Code, Sec. 2909; Indiana, Burns Annot. St. 1914, Sec. 1133; Iowa, Code, Sec. 2922; Kansas, Gen. St. 1915, Sec. 6463; Mont., Civ. Code, Sec. 5737; Nebraska, Rev. St. 1913, Sec. 6230; New Mexico, St. 1915, Sec. 571; North Dak., Comp.
Laws 1913, Sec. 6740; South Dak., Civil Code, Sec. 2054; Vermont, Pub. St. 1906, Sec. 1853 (until condition broken).
93. Minn., Gen. St. 1913, Sec. 8077; Oregon, Lord's Ore. Laws, Sec. 335; Utah, Comp. Laws 1907, Sec. 3517.
94. Mich., Comp. Laws 1915, Sec. 13221; N. Y., Code Civ. Proc. Sec. 1498; South Carolina, Civ. Code, Sec. 3460; Wis., St. 1913, Sec. 3095.
Cept by performing the obligation,95 and by some cases it is apparently asserted that he cannot recover the possession from the mortgagee even before default.96 This doctrine has been applied most frequently, perhaps, in connection with invalid foreclosure proceedings, the purchaser under which, whether the mortgagee or another, is regarded as standing in the place of the mortgagee,97 and such purchaser, having acquired the possession on the strength of the sale to him, is in effect a mortgagee in possession of the land for the purpose of this doctrine.98