¶1delivered the opinion of the Court.
¶2This is an action of replevin, instituted on the 17th of February, 1869, to recover certain goods and chattels from the appellees that they had previously mortgaged to the appellant, the plaintiff below.
¶3The mortgage is dated the 1st of November, 1868, and was made to secure the payment of two promissory notes of that date, payable at three and six months from date respectively.
¶4The mortgage contains, besides a covenant to pay the notes at maturity, covenants in reference to insurance of the property mortgaged, and for the completion of certain partnership engagements, &c., and among its provisions is this : “that until default in any of the conditions and covenants herein contained, and until the non-payment of said two promissory notes at maturity, the said Benoit and Coyle shall possess and use the property hereby mortgaged.” And it is further provided, “that upon default, as aforesaid, to pay said notes and perform *186said covenants, the said McGuire, his personal representatives and assigns, may take immediate possession of said property, and sell the same at public auction,” &c.
¶5The defendants pleaded non cepit, property in themselves, and their right of possession, to which several pleas issues were joined.
¶6At the trial the plaintiff gave in evidence the mortgage, and the two promissory notes therein referred to, and proved that, at the time of bringing the suit, the note payable at three months was over due and had not been paid, and that the defendants had failed to comply with their covenants in other respects; but that the other note was not then due. Upon this evidence the Court below instructed the jury that, as both of the notes were not due and payable at the time of the action brought, the verdict should be for the defendants; to which the plaintiff excepted. And whether this instruction was right, in. view of the terms of the provision of the mortgage in regard to the possession of the property by the defendants, is the sole question in the cause.
¶7By the execution of the mortgage the legal estate became at once vested in the mortgagee, and if there had been no condition as to the mortgagors’ right to retain possession until default, the right of possession would have followed the legal estate, and vested in the mortgagee from the time of the delivery of the deed. But, as was said by the Court in the case of Jamieson vs. Bruce, 6 Gill & John., 75, “this right of possession is always subject to any agreements which may be made in relation thereto, and mortgages do generally contain clauses giving the right of possession as against the mortgagees until forfeiture; but where the parties are entirely silent as it regards the possession, the right thereto follows the legal estate and vests in the mortgagee.” In this the defendants claim the right of possession of the property sued for as against the plaintiff who holds the legal estate; and if they are successful in showing such right, it necessarily defeats the action; for unless the plaintiff shows that he is entitled to the posses*187sion of the property for which he sues in replevin, at the time of suit brought, he must fail to recover. “Whoever is entitled to the possession, whatever may be his title in other respects, may maintain or defeat the action of replevin.” Cumberland Coal and Iron Co. vs. Tilghman, 13 Md., 74.
¶8Such being the rule of law' controlling the rights of the parties, it is contended on the part of the plaintiff that, as one of the notes was due and unpaid, and the defendants had failed to comply with their covenant in regard to the insurance of the property, the mortgage had become forfeited, and consequently the mortgagors’ right of possession no longer existed. But, unfortunately for the plaintiff, that is not according to the terms of the proviso in the mortgage. It was not only until default committed in any of the conditions and covenants therein contained, that the possession was to he held by the mortgagors, but also “until the non-payment of said Iavo promissory notes at maturity.” The default, then, that Avould deprive these mortgagors of the right of possession of the property Avas the failure to pay both notes at the maturity of the last to fall due; and though one of them may have matured and not been paid, still, until the other matured, there could be no such default as Avould entitle the mortgagee to take possession of the property and sell it, as contemplated by the condition of the mortgage. The right of possession existing in the defendants at the time of suit brought, the action must fail as being premature.
¶9Judgment affirmed.