#### Hennesy vs. Farrell.

*Ejectment*— Mortgagee *mposeeesion*— Tenancy.

1. A mortgagee who has gone into peaceable possession of the premises after a default, cannot be ejected by the mortgagor while the mortgage remains unsatisfied,

2. One who peaceably goes into and retains possession in such a case, under the direction of the mortgagee, thereby becomes his tenant, either at will or from year to year.

3. Mortgage to secure a bond given to guardian of infant children, with condition to clothe, educate and maintain the infants for a term of years. In ejectment by the mortgagor, an answer that after the conditions of the bond were broken, defendant peaceably went into and retained possession under the direction of the mortgagee, *held,*to be sufficient.

APPEAL from the Circuit Coxu’t for *Bodge*County.

*43Ejectment. Tbe answer sets up tbe facts stated in tbe opinion of tbe court, and “ demands judgment against tbe plaintiff, and for tbe costs of tbe action.” Tbe defendant appealed from an order sustaining a demurrer to tbe answer.

*Smith &*Orclway, for appellant,

cited *Gillett v. Eaton,*6 Wis., 30; *Tollman v.*Ely, id., 244; *StarJc v.*Brown, 12 id., 572, and cases there cited.

*I. P.*Walker, for respondent,

contended tbat tbe defense pleaded, if good at all under sucb a mortgage as tbat alleged, should baye been made by tbe mortgagee bimself, after being let in to defend by order of court. 2. Where an equitable defense is interposed, under tbe statute, to an action of ejectment, tbe answer must contain all tbe elements of a complaint for affirmative relief. *Dewey v. Hoag,*15 Barb., 365. In tbis case, tbe answer should baye contained all tbe elements of a bill of foreclosure, except, perhaps, tbe prayer for a sale ; and if tbat could be dispensed with, there should at least be a prayer tbat tbe defendant be left in possession until tbe mortgagor pays tbe mortgage debt, or until out of tbe rents and profits it shall become extinguished.

Downer, J.

Michael Mulvaney, as guardian of two infants, sold and conveyed tbe land in dispute to tbe plaintiff: and she executed and delivered to tbe guardian a bond, with a condition tbat she would clothe, maintain and educate for a term of years tbe infants, and a mortgage on tbe land to secure tbe performance of tbe conditions of tbe bond. Tbe defendant alleges tbat those conditions have not been performed, and tbat be, by tbe dbection of Mulvaney, tbe guardian and mortgagee, peaceably went into possession of, and now resides upon, tbe said premises.

Is tbis averment sufficient to show tbat tbe defendant is tbe tenant of tbe mortgagee, or tbat be bolds as tbe agent of Mul-vaney, so tbat tbe possession óf tbe defendant is tbe possession of tbe mortgagee ? If Mulvaney bad been tbe absolute owner of tbe land, and tbe defendant bad gone into possession of tbe *44same by bis direction or permission, without any agreement to pay rent, the authorities are that he would be a tenant at will, or from year to year, of the owner. *Jackson ex dem. Livingston v. Bryan,*1 Johns., 322; Cheever *v.*Pearson, 16 Pick, 266; *Regina v. Winter,*2 Salk, 587; *Proprietors, &c., v. McFarland,*12 Mass., 325; *Farrow v. Edmundson,*4 B. Mon., 605; *Jackson v. Miller,*6 Wend., 231.

The mortgagee, according to repeated decisions of this court, being lawfully in jcossession of the mortgaged lands, cannot be ejected by the mortgagor or Ms assigns, while the mortgage remains unsatisfied. . If the mortgagee can take peaceable possession of the premises, he has a right so to do ; and what he could do himself, he may authorize another to do for him. We are of opinion that the averments in the answer are, in legal effect, that the defendant is in possession as tenant either at will or from year to year of the mortgagee. It follows that the answer sets up a good defense, and the circuit court erred in sustaining the demurrer.

*By the Court.*— The order of the circuit court is reversed, with costs.