Richardson v. Baltimore & Delaware Bay Railroad

Citations

• 89 Md. 126

Syllabus

<p>Mortgages — Right of Mortgagee in Possession After Default to Remedies of an Owner Against Third Parties — Covenant of Re-demise to Mortgagor — Ejectment—Construction of Mortgage.</p> <p>A mortgagor, before foreclosure, is regarded as the real owner of the property, and even after default in payment or breach of condition, when the continued possession of the premises by the mortgagor is with the assent, express or implied, of the mortgagee, he is entitled to the remedies of an owner as respects any interference with the property by third parties.</p> <p>When a mortgage contains a covenant that until default the mortgagor shall possess the premises, such a covenant is a re-demise and the mortgagor is entitled to maintain ejectment against a third party. This right of the mortgagor to retain title and possession may be continued after default by agreement of the parties.</p> <p>Defendant was in possession of certain land which was the property of plaintiff, a Railway Company. This land, together with other property of the plaintiff, had been mortgaged to secure the payment of certain bonds. Defendant’s possession was without the authority of either the mortgagor or the mortgagee. In an action of ejectment, defendant relied upon the fact that there had been a default in the payment of interest under the mortgage to defeat the right of the plaintiff to maintain the action. Held, that inasmuch as there was a covenant in the mortgage which amounted to a re-demise of the premises for the period the bonds were to run, subject to be forfeited by default, and as the default for non-payment of interest contemplated by the terms of the mortgage that would defeat the right of possession of the mortgagor was only such as continued after demand in writing for payment, and as there had been no such demand and hence no such default, the mortgagor still has the right of possession and the legal title under the re-demise and can maintain an action of ejectment against defendant re