Opinion
(June Term, 1858.)
A mortgagee, who has had seven years' possession of the mortgaged premises previously to the entry of the defendant, who is a stranger, can recover possession, whether the mortgage debts have been paid or not.
ACTION of EJECTMENT, tried before MANLY, J., at the Spring Term, 1858, of Sampson county.
C. G. Wright, for the plaintiff.
No counsel appeared for the defendant in this Court.
The title of the lessor of the plaintiff depended upon possession for seven years, under a mortgage deed, the debt secured by which, had, as alleged by the defendant, been satisfied. The point in question was, whether the mortgage had been satisfied, and the Court charged the jury, that if there was seven years' possession, under an unsatisfied mortgage, the plaintiff was entitled to recover, otherwise, he was not. The plaintiff excepted.
Verdict for the defendant. Judgment and appeal by the plaintiff.
It is not distinctly stated in the bill of exceptions, that the defendant was the mortgagor, and from the manner in which the case was submitted to the jury, we infer that he was not. Taking him then to be a stranger, we do not perceive any reason why the plaintiff's lessor, who was a mortgagee, should not recover by virtue of a seven years' possession, whether the mortgage debts were, or were not, satisfied. If they were not satisfied, then his recovery would be for his own benefit; but if they were satisfied, then he would recover the legal title; holding it, however, as trustee for the mortgagor. There is no intimation, in the case, of a reconveyance of the legal title from the mortgagee to the mortgagor, and in a suit by the former, against a third person, to recover the possession of the mortgaged premises, we are not aware of any principle upon which such conveyance would be presumed.
It is well known that in the action of ejectment, the lessor of the plaintiff must recover upon the strength of his legal title, without respect to any equitable interest which may be in another. In the present case, there being no actual, or presumed, reconveyance of the legal title from the mortgagee to the mortgagor, he had a right to recover if he had seven years' adverse possession of the land before the entry of the defendant. The question, whether the mortgage debt had been satisfied or not, will arise between him and his mortgagor in case of his recovery.
PER CURIAM, The judgment must be reversed, and a new trial granted.