#### John Wood *versus*John S. Felton.

Where a mortgagee takes possession of the mortgaged land, the mortgager, after redeeming, cannot maintain assumpsit against the mortgagee for rent during the time he was in possession, although the mortgagee, in his account of the mortgage debt, credits nothing for the rent during the time he was in possession, and the mortgager pays the whole debt without any deduction on that account.

But the mortgager may maintain an action for money had and received, to recover back the amount overpaid, which ought to have been allowed for rent.

A. mortgaged a piece of land to B., on which there were a number of tan-vats, and afterwards entered into an agreement with B., by which A. and B. were to use a part of the vats in tanning on joint account; they accordingly commenced the business; a few months after, A. failed and absconded; B., however, kept the vats, and finished tanning the stock on band, which took more than two years. After A. absconded, B. demanded and received rent as mortgagee, of other tenants upon the land under A., and subsequently to this, took possession of the whole land under an *hab.fac, poss.*C., a purchaser under A., afterwards redeemed. B., in his account of the mortgage debt, gave no credit for rent of the vats occupied by himself, and received the debt without any deduction on that account. B. did not give up the possession of the, vats which he was using on the joint account, until some time after the redemption. C. then brought assumpsit against B., for use and occupation, and for money had and received. *Held,*1. That the count for use and occupation could not be maintained : 2. That B. was not accountable for the rent of the vats before the *hab. fac. poss.*was served : 3. That after the service of that writ he held the vats as mortgagee, and not under the agreement with A. t 4. Consequently, that he was accountable for the rent of the vats from that time : 5. That having allowed no credit for the rent in his account, the amount overpaid, which he ought to have allowed, might be recovered back in this action.

A., before absconding, assigned certain vats with hides in them to D., who employed B. to tan out the hides, and B. in consequence kept possession of these vats until the hides were well tanned, which was not until after C. had redeemed. Hdd, that B. was not accountable to C. for rent for these vats.

Assumpsit, for the rent of thirty tan-vats from October 10th, 1825, to December 1st, 1827, and also for money had and received.

At the trial, before *Putnam*J., the following facts appeared in evidence.

*175On June 7th, 1825, John Frye, who was then the owner of the land on which these and other vats are situated, mortgaged the same to the defendant, who, having obtained judgment on his mortgage for condition broken, took possession of the land on an *hab. fac. poss.*on March 9th, 1827.

On August 14th, 1827, the plaintiff purchased the right of redemption, and received a deed of it from a person who had bought it at a sheriff’s sale on an execution against Frye.

On September 11th, 1827, the plaintiff, as assignee of the mortgager, received an account from the defendant as mortgagee, of the amount due on the mortgage, paid the balance of the account, and received from him a deed of all his interest in the land as mortgagee, but “ excepting and reserving ” all his “ other right, title, and interest ” in the land. In this account the defendant did not allow any thing for the rent of the thirty vats, which is claimed in this action. It appeared from this account, that on October 4th, 1826, the defendant had received rent from Hart and Harris, who were tenants of a part of the mortgaged land, which he credited. The defendant, as mortgagee, had also claimed rent of the plaintiff for a number of tan-vats on a part of the mortgaged land, which the plaintiff had occupied under a lease for three years from Frye, dated April 1st, 1825, and the defendant, on May 28th, 1827, brought a suit for this rent, which was discontinued at the September term 1827.

On September 24th, 1827, the plaintiff demanded rent of the defendant for the thirty vats, which he refused to pay.

The defendant had had possession of the thirty vats during the time for which rent is claimed ; but he contended that he had a right to this possession without being accountable for rent, under a contract made by him with Frye, while Frye was owner of the land, dated October 10th, 1825. By this con tract Frye agreed to find vats, tools for tanning, and yard-room , the defendant agreed to find hides and bark *;*each party was to do half the labor, and find half of every thing necessary to tanning; Frye was to pay half the interest of all money paid out by the defendant, until received by him again ; the defendant was to pay a dollar a year each for half of all the vats employed, and twenty-five cents a day for the bark-mill ; and the *176profits of the business, after paying the defendant his advances f°r hides, bark, &c. were to be divided equally between the Under this contract the defendant and Frye were concerned together in slaughter hides and buffalo hides, which were worked into the thirty vats. Frye, having become insolvent, absconded in the spring of 1826. It takes two years to tan out slaughter hides, and longer to tan out buffalo hides. On February 26th, 1826, Frye assigned eight of the vats to Elijah Upton, together with the packs of leather in them which belonged to Frye ; and Upton employed the defendant to tan out the hides thus assigned. The hides which Frye and the defendant were tanning required continued care and attention after Frye absconded. The vats assigned to Upton were cleared out in October 1827, when the leather was well tanned, the rest, about October 1828, at which time the leather was iti good order for the market. On a settlement of the business under the contract, Frye would be indebted to the defendant. The plaintiff knew of the defendant’s contract with Frye, before he bought the equity of redemption.

, Judgment was to be given for the plaintiff or the defendant, according to the opinion of the whole Court.

*Proctor,*for the plaintiff.

If the agreement between Frye and the defendant made them partners, their partnership was dissolved by Frye’s absconding, and after that, the defendant was liable for the rent, as the mortgagee in possession. *St.*1798, c. 77. Stearns on Real Actions, 36, 269 ; *Pomeroy*v. Winship, 12 Mass. R. 514; *Whitman*v. Leonard, 3 Pick. 177 ; Watson on Partnership, 379, 380. The defendant was in possession as mortgagee before he obtained his *hab. fac.*poss., for he received rent of the other tenants in 1826, and sued the plaintiff for rent of the vats which the plaintiff occupied, which he could not have claimed except on the ground of his possession as mortgagee. The defendant being thus in possession, bis inferior estate, if he had any under the agreement with Frye, was merged in his title as mortgagee. 2 Bl. Com. 177. The defendant, having received his debt of the plaintiff, without making any allowance for the rent of the vats occupied by himself, is liable to refund it in this action for money had and received. *St.*1818, c. 98, § 3.

*177*Choate,*for the defendant.

There was no contract, either express or implied, for the defendant to pay rent. *Allen*v. *Thayer,*17 Mass. R. 301 ; *Jones*v. Hoar, 5 Pick. 285 ; *Whiting*v. *Sullivan,*7 Mass. R. 107. After the defendant had refused to pay rent, the plaintiff’s only remedy, if he had any, was by an action of trespass. *Jewett*v. *Somerset,*1 Greenleaf, 125 ; *Robinson*v. *Robinson,*1 N. Hamp. R. 16. But the defendant was not liable to account for the rent of the' thirty vats in any manner. Before March 1827, he was in possession of them under the contract with Frye. And his entry as mortgagee at that time, did not destroy his rights under that agreement. He had a right to the possession of the vats under it, until the hides bought on the joint account, were fully tanned. The estate under the agreement was not merged by his entry as mortgagee, for it was not his intention to produce that effect. With regard to the eight vats assigned to Upton, Frye could claim no rent of Upton ; of course the plaintiff, who stands in Frye’s place, can claim no rent of the defendant who used those vats under Upton.

Putnam J.

delivered the opinion of the Court. There is no evidence to support the first count for use and occupation The relation of landlord and tenant did not exist.

But there is a count for money had and received, and if the plaintiff has overpaid the debt secured by the mortgage, he is, in virtue of the *St.*1818, c. 98, § 3, entitled to recover such excess in this form of action.1

It appears that the thirty vats were included in the mortgage, and that the defendant occupied twenty-two of them from October 1 Oth, 1825, until after the tender and payment of the debt secured by the mortgage. And it also appears that the defendant has not alloyved any thing for the use of those vats on account of the mortgage. The plaintiff, being the assignee of the mortgager, will be entitled to such allowance, unless the defendant bad a legal right to appropriate the rents and profits to some other account.

After the mortgage was made, an agreement was entered into between the mortgager and mortgagee, for carrying on the *178business of tanning leather, and the mortgager was to provide the vats. That contract was violated on his part. He absconded, and the defendant was left to finish that concern, by proceeding to tan the leather which was in the vats in the process of tanning under the contract, and he occupied the vats until the leather was tanned. He contends that he had a right under that contract to occupy the vats, and is not therefore accountable as mortgagee for such occupation.

So long as those vats were appropriated according to the agreement of Frye (the mortgager), he is to be considered as in possession. It would be analogous to a demise of the mortgagee, which in law is “an agreement that the mortgager should retain the possession and receive the profits to his own use.” *Newhall*v. *Wright,*3 Mass. R. 152.

The mortgager could not, under such circumstances, oblige the mortgagee to apply the rents and profits of those vats towards the mortgage ; and his assignee could not be in a better condition in that respect. So long therefore as the defendant occupied under the contract relating to the tanning, he had a right to apply the rents and profits to that account, viz. from October 10th, 1825, to March 9th, 1827. But the taking of possession on the day last mentioned, in virtue of the *hab. facias,*which issued upon the judgment obtained by the mortgagee, was ah alteration of the relations which before existed. It was, at the least, a declaration of his consent to hold from thenceforward as mortgagee, in the absence of any agreement to the contrary with the mortgager or his assignee. And the legal consequence resulting therefrom, is the defendant’s liability to account for the rents and profits thenceforward as a mortgagee taking possession for condition broken. The time of foreclosure then commenced. The possession before is to be considered as the possession of the mortgager remaining after the execution of the mortgage.

There was no agreement after the defendant took the .possession under the *hab. facias,*that he should be placed in any respect upon any other ground than as mortgagee in possession lor condition broken, to account accordingly.

The judgment is to be for the plaintiff, at the rate of one dollar and fifty cents a year per vat, to he calculated upon *179iwenty-two vats, from the 9th of March, 1827, to the 11th of September, 1827, when the settlement was made of the mortgage, and the defendant released the same : with interest up to the last day of this term, upon the ground that the defendant should have allowed such sum in the settlement of the mortgage. And costs are to be taxed as in personal actions.

1

 See Revised Stat. *c.*107, § 25, 26, 27