Can a mortgagee who obtains possession of the mortgaged premises defend his possession in ejectment until his mortgage is paid?

[191 N.Y. 318]To attempt an exhaustive analysis of the many decisions in this state upon the subject of mortgagees in possession, or even of the cases cited for the appellant, would extend this discussion beyond reasonable limits. Even to refer to them all without elucidating the precise facts and questions involved and decided would be unprofitable. I must therefore content myself with a few general observations upon the leading cases which, although far from satisfactory, will serve to show that while the courts in the earlier decisions indulged in some confusing dicta, and the reporters edited into headnotes some unauthorized conclusions, there has been in the main a constant and growing adherence to the rule that, since the enactment of the statute depriving a mortgagee of his former right to an action in ejectment, he can only obtain possession by consent of the mortgagor or by foreclosure of his mortgage. The case of Van Duyne v. Thayre, 14 Wend. 233, is one of the most generally cited authorities for the broad proposition that a mortgagee who obtains possession of the mortgaged premises after forfeitute may defend his possession in ejectment until his mortgage is paid. The headnote is quite as comprehensive as the foregoing statement; but the opinion of Mr. Justice Nelson very carefully limits the rule to a possession obtained, either by consent of the mortgagor, or by legal proceedings. The case of Phyfe v. Riley, 15 Wend. 248, 30 Am. Dec. 55, is another much quoted authority, but there the opinion of Chief Justice Savage and the headnote specifically state that a mortgagee in possession of mortgaged premises, lawfully acquired after condition broken, cannot be dispossessed