majority">Howard, J.

—The mortgagee has the legal estate in lands mortgaged, and is regarded as owner in fee, as against the mortgager, and those claiming under him, subject to defeasance. He, consequently, has the immediate right of possession, before condition broken, unless it has been waived or controlled by agreement. This general doctrine has been, affirmed by statute, 1841, c. 125, <§> 2.

The demandant as mortgagee, in this case, claims the right to possession of the premises demanded, before showing a breach of any of the conditions of the mortgage. The estate was conveyed to him by the tenants to secure the performance of the conditions of a bond given by Reuben Leach, one of the tenants, for the support and maintenance of the demand-ant during his life, upon the estate; and which contains among other provisions, a stipulation that the obligor “ shall keep the premises conveyed, in as good condition and repair as they are now in, and pay all taxes assessed upon him, or upon said premises, and shall keep the house, if said Shubael so require, insured,” &c.

The bond and mortgage deed were executed at the same time, had reference to the same subject matter and were parts of the same transaction, and they must be construed together. The tenant, who was obligor and joint mortgager, was bound to keep the estate, which was a farm containing about *41fifty acres of land, with buildings thereon, in as good condition and repair, during the life of the demandant, as it was when mortgaged. This he could not do if the demandant was to have exclusive possession of the premises. But in order to fulfill his bond, and do what the demandant required to be done by the terms of the obligation and mortgage, he must have the control, management and possession of the estate.

The demandant cannot deprive the tenants of the right and power to keep the conditions which he requires to be kept. While he insists upon performance he must not prevent it. He relies upon an agreement which operates as a restraint upon his general rights as a mortgagee. It is in substance and effect an agreement incorporated into the mortgage, that the obligor should possess and manage the estate, to enable him to perform his obligations, and prevent a breach of the conditions of the mortgage. Lamb v. Foss, 21 Maine, 240; Allen v. Parker, 27 Maine, 531.

Demandant nonsuit.

Siiepley, C. J., and Tenney, Wells, Rice and Appleton, J. J., concurred.

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