| Vt. | Jan 15, 1829
after stating the case, announced the opinion of the court.— The only ground on which the plaintiff can recover the sum claimed of the defendant is, that he is liable to pay the rent in question to Thomar- Kennedy, the mortgagor; for, the report of the auditor shows, that the articles were delivered in contemplation that they would go in payment of the rent, supposing the defendant as mortgagee, entitled to receive such rent. If the plaintiffis compellable to pay this rent to the mortgagor, the consideration, upon which he delivered the articles to the defendant, has failed, and he ought to recover back their value; if otherwise, the same must go in payment of the rent, according to the original understanding between the plaintiff and defendant.
The statute allowing the defendant in an action of ejectment,to come in with a motion for a decree of redemption, only admits, that motion after a judgment for the plaintiff in common form t and the common form, as dictated by other statutory provisions, is for the plaintiff to recover his damages and costs. Another statute provides, that the mortgagor shall have a right to keep possession of the mortgaged premises till condition broken, in all cas-ses except where a contrary provision is contained in the mortgage deed. As soon as there is a breach of the condition by non-payment, the mortgagee has a right to the possession of the mortgaged premises ; and having such right, if he sues and recovers, his judgment in common form, according to his legal rights, would be that he recover his damages and cost, computing the rents and profits from the breach of the condition. If a motion to redeem is then interposed, these damages will form no part of the sum due in equity, but that will be composed of the money secured by the mortgage and its interest, just as though these damages had not been recovered. But, if there be no redemption, in fact, execution will issue for these damages and the taxable costs.. The effect, therefore, of this recovery of damages, is only to enforce actual redemption ; for, if such damages are recovered and collected without any decree of foreclosure, the mortgagee must account for the same as part payment of the mortgage money, whenever the mortgagor brings his bill to' redeem. As between the mortgagee and the original mortgagor, this recovery of dam
The reasoning cannot be the same, when the assignee of the morgagor takes possession and converts the profits to his own use ; for the mortgagee hasno remedy against such assignee for the accruing interest upon the mortgage money; and if he is enriched by the rents and profits of the mortgaged premises, he holds the same out of the reach of the mortgagee ; his only remedy jbeing upon the mortgagor and upon the mortgaged premises. It would, therefore, seem reasonable, if the law will admit of it, that the' iportgagee should recover the rents and profits of such assignee, and, thereby render a redemption more certain, and he be liable' to account for the same when redemption is made. This court decided in a case in Caledonia county, (See 1 Aik. Rep. 329, Atkinson vs. Burt et al.) that the mortgagee might recover rents and profits against the assignee of the mortgagor, after notice to quit; and, if no such notice, then, from the commencement of the-actipn..
.yin the present case, the defendant’s callingupon plaintiff, after a breach of condition, and giving him notice to pay the rent to the defendant, was,for this purpose, tantamount to notice to quit; and from that time forward he had a right to receive the rents & profits, from the principles of the, decision above cited. And, during the same period, the mortgagor could support no claim for the rents and profits,. for the yery. reason that the same belonged to the defendant.
. It appears, from the report of the auditor that the defendant, tire.mortgagee, .was in possession of, .the .other parts of the mortr gaged premisesbu.t it,does not appear that the plaintiff had sq attorned to .the defendant, as to render his possession, properly spealdng, that, of the defendant.. The plaintiff seems to have declined attorning to the defendant, through fear of his liability to the mortgagor. Yet, after the pay-day of the mortgage money had arrived, and the payment not made, and he notified by the de
We will now notice the arbitrament and award. If this forms any answer to the defence set up, it must be on the ground that the defendant is thereby estopped to set up^his right to this renc- or his claim thereto is barred, as if there had been a regular adjudication and decision against his right. It appears by the report that the defendant brought against the plaintiff an action of .assumpsit for the use and occupation of these premises. That action was submitted to, and decided upon, by arbitrators, and the award was against the present defendant, that he' could not recover in the action. It does not appear on what ground they arrived at that decision; but, if there is any ground on which they might so decide, and yet this defence stand good, the estoppel or bar fails. Now it is obvious that action might have been decided •upon the ground of a total want of contract’ between plaintiff and defendant. The arbitrators might have found the defendant in that action a trespasser upon, and not tenant to, the then plaintiff ■who is the present defendant. What is more conclusive, they might have decided on the very ground, that the items of the plaintiff’s account, now sued for, were .a full payment of the very rent then sued for.
In such a case, their decision would have been correct, and would also furnish a good reason why the present plaintiff should not recover in this suit, and get back the very money that once went in payment of the rent. In every view taken by this court,the judgment for the plaintiff is erroneous, and must be reversed. And, it also appearing by the report of the auditor,that, if the plaintiff’s account was applied in payment of the rent, there would be nothing due to the plaintiff, judgment must be rendered forth» defendant to recover his cost; which is the judgment the Coutity Court ought to have rendered.