Carroll v. Ballance.

possession about one year; that they afterwards leased to defendant, Carroll, that portion of said premises that they retained possession of, having been turned out of the possession. of one and part of another French Claim lot previous to their leasing to the said defendant; that Carroll had been in possession under the lease from them since November, A. D. 1859; that the lots of which they were dispossessed constituted a portion of the land embraced in the description in the plaintiff's mortgage offered in evidence, but was excepted in the declaration.

A witness, called by plaintiff, identified the land, and stated that the land claimed was included in the mortgage; but that the declaration did not include the French Claims.

It was proved that Ballance told Henry M. Kellogg that he wanted payment of the notes or possession of the property; Kellogg said he was waiting for his brother to come on from New York, and when he arrived, something should be done; that defendant, Carroll, was in possession of the land at the time; heard nothing said at the time about French Claim suits; defendant was told that plaintiff would like to get possession without trouble.

The defendant offered in evidence a lease from Charles Ballance to A. S. Cole, dated 22nd January, 1844, which lease covers a portion of the land described in the mortgage and declaration, and includes all the land covered by the French Claims aforesaid. The lease was for a term of ten years, reserving a yearly rent of fifty dollars, payable the 18th of July in each year, with a right on the part of the lessor to re-enter in case of failure to pay the rent; the lessee to have the privilege of renewal of the lease every five years after its expiration, at a price to be agreed upon, or determined by arbitrators, also of removing buildings and improvements put on by him.

Cole assigned this lease to Sylvanus Thompson.

On the 21st of January, 1854, the lease was renewed to Richard Gregg & Co.

Sylvanus Thompson having died, his executors-Harriet J. Thompson and Richard Gregg-assigned said lease to William Kellogg.

The execution of the lease, assignments, extension, etc., and the death of Thompson previous to September 25th, 1854, and the appointment of Thompson and Gregg as his executors, were admitted by the plaintiff.

The defendant offered in evidence a deed from Charles Ballance to William Kellogg, dated November 5th, 1855.

This deed describes the same land embraced and described in

Carroll v. Ballance.

the plaintiff's mortgage, and includes the French Claims before mentioned.

The defendant next offered in evidence a record of the Circuit Court of the United States for the Northern District of Illinois in Ejectment: William P. Bryant, Plaintiff, and Richard Gregg, Defendant. For French Claim, No. (29).

The record shows that suit was commenced on the 12th of January, 1854.

That a verdict and judgment were rendered in favor of the plaintiff on the 10th of October, 1857, Charles Ballance, the plaintiff in this suit, approving and acting as attorney for the defendant.

On the 3rd day of May, A. D. 1859, a writ of possession was issued upon this judgment, and on the 5th day of May, A. D. 1859, this writ was executed by delivering possession of said premises to the plaintiff.

The defendant then offered in evidence the record of a judg ment and proceedings in the Circuit Court of the United States for the Northern District of Illinois in Ejectment: Edward P. Tesson, Plaintiff, and Richard Gregg, Defendant. For the undivided half French Claim, No. (33).

The suit was commenced and the declaration served April 7, 1854.

Charles Ballance, the plaintiff in this suit, appeared, pleaded, and tried the cause for the defendant.

On the 21st of July, 1856, there was a verdict and judgment rendered in said cause in favor of the plaintiff.

On the 3rd day of May, A. D. 1859, a writ of possession was issued upon this judgment, and on the 5th day of May, A. D. 1859, this writ was executed by delivering possession of said premises to the plaintiff.

Defendant then offered in evidence a lease of the undivided half of claim (33) from Edward P. Tesson, and a lease of claim (29) from William P. Bryant to William S. Moss, A. C. Harding, James Knox, Urial H. Kellogg, Henry M. Kellogg, each bearing date date May 6th, 1859.

Defendant then offered to prove that Kelloggs and defendant Carroll, since the execution of said leases, had occupied the premises described in the leases under said leases, and that the French claims (33) and (29) recovered in the ejectment suits aforesaid, and from which the defendant in said suits and those claiming under him, had been ousted by and under the writs of possession given in evidence by defendant, constitute a large majority in value of the land described in the plaintiff's deed to William Kellogg, and in the mortgage offered in evidence by

Carroll v. Ballance.

the plaintiff, and that they are worth the sum of $20,000; that Richard Gregg, against whom the recovery was had in said suits, was the plaintiff's tenant at the time said suits were instituted, and that he claimed title, and was defended under the same title that the plaintiff had and claimed, when he sold and conveyed to said William Kellogg by his deed of November 5th, 1855.

The defendant then admitted that the land recovered in the suits of Bryant v. Gregg, and Tesson v. Gregg, though embraced in and constituting a portion of the land described in plaintiff's mortgage given in evidence, and in plaintiff's deed to William Kellogg, constituted no portion of the land claimed or described in the plaintiff's amended declaration.

The court, on motion of the plaintiff, excluded all the defendant's evidence offered in the suit, and withdrew the same from the consideration of the jury.

To all of which the defendant excepted.

The court, at the plaintiff's request, instructed the jury as follows:

If the jury believe, from the evidence, that the lands described in the plaintiff's declaration were and are included in and constitute a portion of the land described in the mortgage of William Kellogg offered in evidence; that William Kellogg was at the execution of said mortgage in possession of the premises described in the declaration, and continued in such possession until the time of his death; that immediately after, Henry M. Kellogg and Urial Kellogg, as administrators of said William Kellogg, entered into the possession of said premises described in said declaration, claiming them only under the right, title and interest of said William Kellogg; that afterwards the said Henry M. Kellogg and Urial Kellogg leased said premises described in the declaration to the defendant; and that said defendant was in possession of said premises described in the declaration at the time of the commencement of this suit, and that before the commencement of this suit the said William Kellogg and his legal representatives had made default in the payment of two or more installments of the money secured to be paid by the said mortgage, then the jury must find the defendant guilty of unlawfully withholding the possession of the premises claimed in the declaration from the plaintiff.

If the jury believe, from the evidence, that the only title which the plaintiff in this cause has established to the premises. in controversy is by virtue of the mortgage offered in evidence, and a default on the part of the mortgagor and his legal representatives in the payment of a part of the money, secured to be paid by said mortgage, then, if the jury find for the plaintiff

Carroll v. Ballance.

upon the other facts sought to be proved in this cause under the foregoing instructions, they will find that the title, which the plaintiff in this cause has established, is an estate in fee, subject to be defeated, by the performance of the condition of the mortgage offered in evidence.

To which the defendant excepted.

Defendant asked the following instructions, which the court denied:

That no action of ejectment can be maintained upon the mortgage given in evidence, until the whole of the mortgage money has become due and remains unpaid.

That the plaintiff cannot maintain this action on this mortgage unless upon a failure by the mortgagor to pay some installmênt, and the plaintiff has given notice of a forfeiture for such failure.

That no action of ejectment can be maintained on this mortgage until the conditions of the mortgage have been broken by the mortgagor, and six months' notice has been given him to quit the possession of the premises.

That no such action can be maintained until the conditions of the mortgage have been broken, and reasonable notice to quit has been given by the mortgagee to the mortgagor, or those claiming under him.

That if the jury believe, from the evidence, that the defendant at the date of the service of the declaration in this cause, was in possession of the premises under the lease to Cole, and the assignments of the same, claiming as a tenant and occupying under said lease and assignments, the plaintiff cannot recover in this action unless he has proved that the defendant had reasonable notice to quit the possession prior to the commencement of this suit.

That if the jury believe, from the evidence, that the defendant, or those under whom he claims, have been evicted from the most valuable portion of the premises described in the mortgage, the plaintiff cannot maintain ejectment upon the mortgage for the residue or any portion of the residue of the land described in said mortgage.

That if the jury believe, from the evidence, that the defendant was in possession of the premises at the time of the service of the declaration, as a tenant from year to year under the plaintiff, or under those having or claiming possession under him, the plaintiff cannot recover, unless the plaintiff gave him reasonable notice to quit prior to the commencement of this suit, and that six months is such reasonable notice.

That if the defendant, at the time of the service of the declaration in this case, was in possession of the premises as a

Carroll v. Ballance.

tenant of William Kellogg's executors from year to year, with the plaintiff's knowledge, he was entitled to six months' notice to quit before this action could be maintained against him; and unless this notice has been given, the plaintiff cannot recover. The defendant excepted to the ruling of the court, denying said instructions.

After the verdict, the defendant moved for a new trial, because the verdict was against the law and evidence; because the court excluded the evidence offered by the defendant; because the court permitted the plaintiff to give improper evidence; and because the court gave the instructions asked by plaintiff, and refused those asked by defendant. Which motion was overruled, and defendant excepted.

The errors assigned are: excluding defendant's evidence; admitting plaintiff's evidence; giving the plaintiff's and refusing the defendant's instructions; and overruling the defendant's motion for a new trial.

N. H. PURPLE, for Appellee.

C. BALLANCE, in person.

BREESE, J. The questions presented by this record are, can a mortgagee, the mortgage debt being payable by installments for which separate notes are given, recover the mortgaged premises in ejectment against the mortgagor, or those claiming under him, when one or more notes are due and unpaid, and without notice to quit to the party in possession, before action brought?

In England, and in many of the American States, it is understood that the ordinary mortgage deed conveys the fee in the land to the mortgagee, and under it, he may oust the mortgagor immediately on the execution and delivery of the mortgage, without waiting for the period fixed for the performance of the condition. Coote on Mortgages, 339; Blaney v. Bearce, 2 Greenl. R. 132; Brown v. Cramer, 1 N. H. 169; Hobart v. Sanborn, 13 ib. 226; Northampton Paper Mills v. Ames, 8 Met. 1.

And this right is fully recognized by courts of equity, although liable to be defeated, at any moment, in those courts, by the payment of the debt. It has been held, that this right cannot be restrained by a parol agreement that the mortgagor shall be allowed to remain in possession until forfeiture, for the reason, that such an agreement is inconsistent both with the terms of the deed, and the provision of the statute of frauds. Colman v. Packard, 16 Mass. 39.

So strict are the principles which obtain in such cases, and