Lyman v. Mower

The opinion of the court was pronounced by

— The only question that properly arises in the case is, whether the plaintiff, who was the mortgagee of the premises sued for, is entitled to recover rents and profits against the defendants, who are the assignees of the mortgagor, from the time the plaintiff shews notice to the defendants to quit, and without such proof, from the' time of the service of the writ; and this question having been, by three successive decisions of the supreme eourt, determined in the affirmative, it is now a concluded, rather than an open question.

*348in Stanbury vs. Dean, (Bray. R. 166,) it was decided tbat 3 v . . ' r .. the mortgagee may recover against the mortgagor alter condi-tionbroken. In Atkinson vs. Burt, (1 Aik. R. 329,) it was decided that in ejectment, mortgagee against the grantees of • . , r cu. r the mortgagor, damages may be assessed for mesne profits alter notice to quit, and if no notice, after the commencement of the action. And in Babcock vs. Kenedy, (1 Vt. R.) it was adjudged that the mortgagee, after the Jaw day is passed, and notice to pay him rent, is entitled to recover the rents and profits: and the case of Atkinson vs. Burt is cited and approved by the judge who delivered the opinion of the court. These triple reported cases have settled the law on this subject, and it were useless to go over again the reasons on which the decisions were made; and we have seen no injurious consequences jn practice resulting from these determinations.

Judgment of the county court is affirmed.