#### DEN ON DEMISE OF CHARLES FULLER *vs.*BARNABAS WADSWORTH.

Where a demise in a declaration in ejeelment was laid to be on the first day of January, and the service of the declaration appeared by the sheriff’s return to have been made on the thirty first of December preceding, *held*that, after the defendant has confessed the lease, entry and ouster, be is precluded from making any objection to the declaration on that account.

A mortgagee, after the day of payment passed, may bring an action of ejectment against the mortgagor, without any notice to quit or demand of possession.

An appeal from the judgment of the Superior Court of Lenoir county, at Spring Term, 1S42, bis Honor Judge Battle presiding. This was an action of ejectment on the trial, of which the following facts were agreed upon. On the 4th of November, 1835-, the premises in dispute, and of which the defendant was in possession, were mortgaged by him to William D, Mosely. After the mortgage became forfeited, to wit, on the 23d of November, 1838, the said William D. Mosely, dy deed, conveyed bis interest in the said mortgaged premises to the lessor of the plaintiff, Charles Fuller. At Spring Term, 1838, of Lenoir Superior Court of law, the lessor of the plaintiff obtained a judgment against the defendant Wadsworth, upon which a writ of *fifa*was. issued and levied by the sheriff upon the said Wadsworth’s equity of redemption in the said lands; and on the first Monday of July, 1838, the said equity of redemption was sold by the sheriff at public sale, when the lessor of the plaintiff became the purchaser, and on the 7th of April,. 1840, the said sheriff executed to the purchaser a deed for the same. The declaration in ejectment was issued to the County Court of Lenoir, at its January Term, 1839, and *264the demise therein stated was the first day of January, 1839. r,^ke defendant has never been out of the possession of the premises since the date of his mortgage to William D. Mosety» and diere was no evidence offered by the plaintiff of a notice to the defendant to quit, or demand of possession, before the bringing of this action. The declaration in this case appears from the return of the sheriff, endorsed on the same, to have been served, as follows, “ Executed by delivering a copy of this the 31st day of December, 1838.” The defendant had, as it appeared from the record, confessed lease, entry and ouster, and pleaded not guilty. Upon these facts, the court was of opinion that the plaintiff was entitled to recover, and rendered a judgment accordingly, from which the defendant appealed.

*J. W. Bryan*and *Iredell*for the plaintiff.

*J. H. Bryan*for the defendant.

Daniel, J.

First; the possession of Wadsworth, the mortgagor, was not adverse to Mosely, the mortgagee. Mosely, therefore, had a right to convey, and he did convey to Fuller on the 23d of November, 1838. Fuller brought ejectment to January Term, 1839, of Lenoir County Court. The date of the demise in the declaration was on the 1st day of January, 1839, when Fuller had a title to the possession. The sheriff, however, returned on the declaration, that he had delivered a copy thereof to the defendant “ on the 31st day of December, 1838.” We think that, as the defendant, at January Sessions, 1839, (after the date of the demise) accepted a copy of this declaration, and entered into the common rule to confess the lease mentioned therein, &c. he was precluded from making any objection, on the score of the declaration being served on him by the sheriff before the date of the demise in the said declaration.

Secondly; the mortgage money not having been paid at the day mentioned in the mortgage deed, the mortgagor was, thereafter, but a tenant at sufferance. In such a case, neither notice to quit nor a demand of the possession is necessary, before bringing ejectment. *Patridge*v *Beers,*5 Barn. & *265Ald. 604. Coote on mortgages, 326, 327. The mortgagor in such a case can sustain no injury for the want of a demand of the possession; for he need not defend. Then the judgment is only against the casual ejector; and if the mortgagor surrenders the possession on the service of the declaration, the plaintiff can recover neither damages nor the costs of the ejectment in an action for mesne profits. We are of opinion that the judgment must be affirmed.

Per Curiam, Judgment affirmed.