Newton v. McKay
| Decision Date | 20 October 1874 |
| Court | Michigan Supreme Court |
| Parties | Archibald P. Newton v. John McKay |
Heard October 13, 1874
Error to Cheboygan Circuit.
Judgment reversed, and judgment entered for plaintiff.
Atkinson & Hawley, for plaintiff in error.
L. S Trowbridge, for defendant in error.
This was ejectment brought by Newton, as owner of the equity of redemption of lands, against McKay, who holds as assignee of a mortgage not in a shape to be foreclosed by advertisement, but which had been proceeded on by statutory foreclosure.
The facts appear substantially as follows: Newton holds by deed from the estate of one Belote, given by his administrator in August, 1869, under a probate decree enforcing a contract made by Belote for the sale of the land in 1868. McKay holds by assignment a mortgage made by Belote in 1866, irregularly foreclosed in 1869, and by a deed from Belote's administrator, given in June, 1871. For some unexplained reason McKay went into possession in the summer of 1871. The court below sustained the legality of his possession as a mortgagee.
The first question to be considered is the character of this entry. It is claimed to have been with the mortgagor's consent. But when the entry was made, and when the deed was given by Belote's administrator to McKay, all the right of the estate had been divested by the previous conveyance under the probate decree. Thereafter Belote's estate had no further concern with the land, and permission from the administrator was no better than if Belote had never owned it. The question then arises, whether a mortgagee who goes into possession without the permission of the mortgagor, has a right to hold possession against him. It is claimed that such a possession, peaceably obtained, may be upheld.
It was held in Mundy v. Munroe, 1 Mich. 68, that if the statute of 1843, forbidding ejectment suits by mortgagees before foreclosure, applied to existing mortgages, it was invalid, because impairing the obligation of contracts. In other words, it was held that this law was inconsistent with a contract which authorized the mortgagee to take possession,--as he always could at common law. The court, in further declaring the object of the act to be to take away the right of possession from the mortgagee, merely expressed the same idea. It would be absurd to hold that there could be a right of possession which could not lawfully be enforced. This holding was in no sense obiter dictum, but was the very thing decided.
In all the decisions and rulings made by this court since, this idea has been adhered to, and the right of possession has been denied. In Crippen v. Morrison, 13 Mich. 23, and Hogsett v. Ellis, 17 Mich. 351, the questions involved bore directly on the existence of any right of possession.
Where the mortgagee has no authority not derived from the mortgage itself, there is no middle ground between a right to sue for possession and no possessory right. The form of the mortgage remains as before. The right of possession, if it exists at all, exists because the legal title passes, and can be enforced by legal remedies. There can be...
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