191 N.Y. 306 | NY | 1908
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *308 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *311 This is an action in ejectment. It has had a long and varied history, in the course of which many questions have arisen, some of which are not germane to the present appeal. The principal question now before us is whether the defendant Agnes Mulligan, whom we shall call the appellant, was a mortgagee in possession when this action was instituted. The material facts which bear upon this question are briefly as follows: In 1853 Selena Barson purchased a plot of land, which embraces the premises in dispute, situate in the county of Westchester, now within the limits of the borough of the Bronx, in the city of New York. A purchase-money mortgage for $1,000 was then given to the grantor, payable in one year from date. The grantee went into possession, which she retained until her death in November, 1862. She left her surviving a husband and several children. As she died intestate, the fee passed to her children, subject to the husband's tenancy by the curtesy. The husband went into possession, and at a time not specifically pointed out in the record, executed to the appellant a lease of the premises, which seems to have expired on or about January 1st, 1895. On the 26th day of March, 1894, a new lease was entered into between the tenant by the curtesy and the appellant, which was to run for five years and four months from January 1st, 1895. This lease was cut short by the death of the lessor on the 2nd of October, 1897. If these were all the facts which comprise the history of the case *312 preceding the death of the tenant by the curtesy, there could, of course, be no question as to the rights of the respective parties to this action. In that event the possessory right of the appellant as the lessee of the tenant by the curtesy would have been so clearly extinguished by the death of the latter as to leave no question open for discussion. There are other facts, however, upon which the appellant now contends that at the death of the tenant by the curtesy, or at least when this action was commenced, she was a mortgagee in possession, and entitled to remain upon the premises until her mortgage is paid. It appears that the purchase-money mortgage made by Selena Barson in 1853 passed through various hands until, in June, 1888, the appellant acquired title thereto by assignment. She held it for eight days and then, on July 6th, 1888, assigned it to one Steers, who was the holder thereof in October, 1894, when the appellant took from the tenant by the curtesy the second lease above referred to. Steers continued to hold the mortgage until October 6th, 1897, when it was re-assigned to the appellant. On October 2d 1897, or four days before this re-assignment, the tenant by the curtesy died and thus, by that event, the lease from him to the appellant was terminated as above stated. Since the appellant concededly entered into the occupation of the disputed premises under a lease which expired with the life of the tenant by the curtesy, it becomes pertinent to inquire by what means and at what time the appellant claims to have become a mortgagee in possession. Her answer to the complaint and her testimony clearly show that she entered into possession of the premises under the lease, and that there never was any change in the character of her possession unless Steers' re-assignment to her of the mortgage, after the death of the tenant by the curtesy, metamorphosed her tenancy under the lease into a possession under the mortgage. The answer of the defendants does set forth the appellant's ownership of the mortgage, but it asserts no right of possession of the premises covered by it, except "as mortgagee under and by virtue of the instruments aforesaid," and *313 one of the instruments, thus referred to in the plural, is the lease set forth in the complaint and admitted in the answer. The appellant's testimony is no more explicit. It discloses no assertion of a right to possession as mortgagee, unless that is to be inferred from the admitted fact that the mortgage was re-assigned to her four days after her tenancy expired. It is true that the appellant sought to prove that the assignment to Steers of the mortgage was not absolute, as upon its face it purported to be, but was intended as collateral security for a loan, and that the evidence was excluded because that question was thought not to be within the issues raised by the pleadings. The exceptions to the rulings of the trial court in this behalf are urged upon this appeal as one of the grounds for reversing the judgment, but in our view of the case that proof, in and of itself, was not relevant to the question whether, upon the foregoing facts, the appellant was a mortgagee in in possession. Even if it be conceded for the purposes of the argument that the appellant merely assigned the mortgage to Steers as collateral security for a debt, the issue is still squarely presented whether a mortgagee who takes possession of the mortgaged premises as tenant under a lease from a life tenant can become a mortgagee in possession without the consent of the mortgagor. It cannot be denied that there is some confusion in the earlier reported cases in this state relating to the general subject of mortgagees in possession. This confusion has arisen in part fromobiter dicta in cases where the question was not involved, and in part from broad judicial statements and still broader reporters' head notes, in cases where it was either assumed or proved that the mortgagee was rightfully in possession under his mortgage, but principally from the fact that for some time after the common law was changed by the Revised Statutes, the old rule continued to find inadvertent expression in some judicial opinions.
At common law the mortgagee was at first treated as being the legal owner. His estate was devisable and descended to his heirs. After breach of the condition he could oust the mortgagor by an action in ejectment, or by any other means *314 that did not involve a breach of the peace. In equity, however the rights of the mortgagee passed to his personal representatives and the mortgagor was regarded as the real owner of the land. These conflicting views were carried so far that even after the courts of law had recognized the title of the mortgagee as absolute, and had put him in possession, the courts of equity enforced what they called the mortgagor's equitable right of redemption. These contradictory decisions gave rise to much confusion. The judges who had been trained in the rigorous school of the common law regarded the equitable rule as an offensive innovation. But the common-law rule was so harsh and, in many cases, so extremely unjust, that the equitable rule grew in favor and was vigorously invoked. In course of time even the courts of law came to recognize the right of the mortgagor to redeem after forfeiture. Despite this gradual and partial evolution, the mortgagee was still regarded as in some respects the legal owner of the mortgaged premises. He could maintain ejectment and assert other legal remedies subject only to the mortgagor's right of redemption. It was finally appreciated, however, that the so-called ownership of the mortgagee was the merest fiction, because the only strict legal right he had left was to collect the debt secured by the mortgage. The mortgagee's estate had been whittled down until it disappeared altogether and there was left him nothing more than a lien under his mortgage. Under these circumstances it was, of course, absurd and unjust to permit such a creditor, for that is all that the mortgagee was, to take possession of his debtor's property without the latter's consent, or without first enforcing his rights under his lien. When the estate in fee was regarded as belonging to the mortgagee, the right of possession naturally followed ownership; but when title was held to remain in the mortgagor until divested by sale under foreclosure, the possessory right of the mortgagee became a legal anomaly that could not survive.
This was the situation when the legislature in 1830 enacted that, "No action of ejectment shall hereafter be maintained *315
by a mortgagee, or his assigns or representatives, for the recovery of the possession of the mortgaged premises." (2 R.S. 312, § 57.) Since that time this has been the law of this state, the identical language of the statute having been adopted into our Code of Civil Procedure. (Sec. 1498.) The only logical theory upon which this change in the law can be justified is that the mortgagee, having come to be regarded as a mere lienor, had no legal estate in the land covered by his mortgage, and that is the view which has been accepted by our courts. (Runyan v.Mersereau, 11 Johns. 537; Jackson v. Crafts, 18 id. 110;Jackson v. Bronson, 19 id. 325; Kortright v. Cady,
Let us now consider the concrete question presented by the facts in the case at bar. Can a person who enters as tenant acquire the position of a mortgagee in possession without the owner's consent? The appellant entered under a lease which expired at her lessor's death. If she had never owned the mortgage which gives rise to this controversy, her covenant under the lease to surrender the land at the expiration of the lease would at once have become operative and could have been enforced in summary proceedings for her removal. How does the fact that she held a mortgage, assuming that she had held it continuously to the instant of her lessor's death, change the situation? Her occupation as tenant gave her no rights as mortgagee. She could not hold the premises in both capacities, and there is nothing in the pleadings or the proof to indicate that she ever abdicated her position as tenant to assume the attitude of a mortgagee in possession. *317 The evidence is quite to the contrary, for it plainly appears that from the inception of the lease to the hour of her lessor's death she occupied the premises as a tenant and nothing more. The expiration of the lease ended the appellant's right to possession of the premises. From thenceforth her occupancy was merely by sufferance. She was under a legal obligation to vacate the premises. Could she, in these circumstances, constitute herself a mortgagee in possession without the consent of the owner? I think not. She could not do this even if she then had possession of the mortgage, for her entry and occupation had taken place under a lease which precluded her from asserting a claim inconsistent with her tenancy. But the fact is that when her lease expired the appellant did not have possession of the mortgage. Steers then held it by assignment, and it is of no moment whether the assignment to him was absolute or merely to secure a debt. The important fact is that Steers, who at that time stood in the shoes of the mortgagee, was not in possession of the premises. It is difficult to understand how the appellant could occupy a more favorable position than Steers would have occupied if he had continued to own the mortgage. Proceeding now to the time, four days after the expiration of the appellant's lease, when she regained full possession of the mortgage by taking an assignment from Steers, the question naturally arises whether anything then transpired to change the relations of the parties. In that regard the record discloses nothing beyond the bare assignment of the mortgage from Steers to the appellant. The latter was then a tenant holding over after the expiration of her term. She asserted no right of possession under the mortgage. If it was her purpose to assume that relation she should have disclosed it. Her silence was equivalent to an admission that she regarded herself as maintaining the character in which she entered and occupied the premises to the time of her lessor's death. This result must follow, it seems to me, unless we are prepared to go to the full length of holding that a mortgagee who enters without right cannot be disturbed in his wrongful possession. *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 head notes 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 VanDuyne 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 forfeiture may defend his possession in ejectment until his mortgage is paid. The head note 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) is another much quoted authority, but there the opinion of Chief Justice SAVAGE and the head note specifically state that "a mortgagee in possession of mortgaged premises, lawfully acquired after condition broken, cannot be dispossessed in an action of ejectment." In Hubbell v. Sibley
(
It still remains to be decided, however, whether the entry of the mortgagee, with the consent of the mortgagor, must be directly under the mortgage or whether any entry with the consent of the mortgagor will suffice to constitute the possession which enables a mortgagee to successfully defend in an action of ejectment brought by the mortgagor or owner. This question is not free from difficulty, and if it were wholly one of first impression I should incline to the view that the mortgagor's consent must relate to an entry directly under the mortgage. But I admit that this is narrow ground which would necessarily exclude many cases that most forcibly appeal to a legal tribunal having jurisdiction of cases in which equitable defenses may be interposed. It is to be noted, moreover, that this court seems to be committed to the doctrine that the mortgagee's possession "need not be given under the mortgage, nor with a view thereto."Mad. Ave. Bap. Ch. v. Oliver St. Bap. Ch. (supra) andHowell v. Leavitt (supra) point in the same direction. In what cases then may it properly be held that a mortgagee who enters the mortgaged premises with the consent of the mortgagor is to be regarded as a mortgagee in possession? That is very clearly a question which cannot be answered categorically, *322
for any departure from the restricted rule that the mortgagee's entry must be under or by virtue of the mortgage leads us into the broad domain of equities which are as manifold as human motives and actions. There is, however, a conservative area within which, it seems to me, the questions arising upon this troublesome subject may be safely confined. Whenever it appears that the mortgagor has consented, either expressly or impliedly, by contract or conduct, to the entry of the mortgagee, for purposes, or under circumstances, not inconsistent with their relative legal rights under the mortgage, the possession of the mortgagee may properly be regarded as lawful. So, on the other hand, when the entry of the mortgagee is effected by the consent of the mortgagor under a relation that is hostile to, or inconsistent with, the legal rights of the parties under the mortgage, then the mortgagee's possession must stand or fall without reference to his mortgage. The case at bar is a concrete example of the latter proposition. The appellant entered with the consent of the mortgagor, but under a lease in which she covenanted to surrender the premises at the end of her term. She entered as tenant and not as mortgagee. When her lease expired she had no greater right to remain upon the premises than a stranger would have had. Standing in that relation to the owners, she could not hold possession against them under the mortgage without their consent given as representatives of the mortgagor. Having entered and occupied as lessee, the appellant could not hold over as mortgagee, any more than she could acquire lawful possession by force or fraud against the will or consent of the owners. (Howell v. Leavitt,
It is urged, however, that the appellant could have shown that she was in fact permitted to remain in possession under *323
her mortgage after the expiration of her lease, had she been allowed to give evidence of a conversation between herself and one of the plaintiffs. The record discloses that when the appellant was a witness she was asked if, subsequent to the death of the tenant by the curtesy, she had a conversation with one of the respondents. She answered in the affirmative, stating that her conversation was with Charles H. Barson, who is one of the reversioners. She was then asked to state the conversation and it was objected to by plaintiff's counsel "as not within the issues raised by these pleadings." The objection was sustained and counsel for the appellant excepted. The appellant was then asked to state whether Charles H. Barson had said anything to her with reference to her remaining in possession of the premises underher mortgage. This was objected to on the same ground, the objection was sustained and appellant's counsel excepted. It is clear that the rulings cannot be sustained on the ground suggested by the objections. The inquiry was within the issues raised by the pleadings, for the complaint alleges that the defendants are wrongfully in possession without leave of the plaintiffs and without legal right, and the answer denies the allegation. It needs no argument to show that this evidence would have been clearly competent and material if Charles H. Barson, with whom the appellant claims to have had the conversation, were the sole owner of the premises in dispute. The fact is, however, that he is only one of several tenants in common. It was clearly beyond his power to bind his co-tenant by any unauthorized act or omission of his own. (Dan v. Brown, 4 Cow. 483; St. Paul'sCh. v. Ford, 34 Barb. 16; Jackson v. Moore, 6 Cow. 706;Matter of Kennedy,
It is also urged for the appellant that the plaintiffs cannot recover because they failed to establish title to an undivided one-third of the premises in dispute. In that behalf it appears that Selena Barson left her surviving three children. They were William G., Charles H. and George. The latter was born in 1848 and disappeared in 1869, when he was about twenty-one years of age. He was unmarried at that time, and nothing was ever heard of him afterwards, although search and inquiry were made. At the time of the trial thirty-seven years had elapsed since his disappearance. These circumstances were sufficient to raise the legal presumption that he was dead after the lapse of seven years from the time of his disappearance. (Lawson's Presumptive Ev. p. 250; Abb. Tr. Ev. 98.) The question whether he was dead or alive was submitted to the jury, and their general verdict for the plaintiffs settled that issue in their favor. The death being thus established carried with it the presumption of intestacy. (Mitchell v. Thorne,
Still another question remains to be considered, and that is whether the trial court, upon the application of the plaintiffs, was authorized to double the damages proved at the trial. Plaintiffs assert their right to double damages under section
If this latter statute were new the remedy therein specified might be regarded as a partial substitute for the remedies given by the Revised Statutes and the Code of Civil Procedure in actions of ejectment. The statute is not new, however, but very old. It was first adopted in England (4 Geo. II, chap. 28) and was borrowed by us in 1774. It was re-enacted here in 1788 in the first general revision of English statutes extended to New York. Later it passed through several revisions until it was adopted into the Revised Statutes and from thence it passed into the present Real Property Law. Thus we see that it has come down to us, side by side with the Revised Statutes relating to the recovery of real property which are now a part of our Code of Civil Procedure. Under the Revised Statutes a plaintiff recovering judgment in ejectment was entitled to recover damages for rents and profits. Under the first code, or Code of Procedure, the measure of *327
damages remained unchanged, but the practice was simplified by requiring the plaintiff to set forth in his complaint his demand for damages, instead of leaving that to be tried as a separate issue as was the custom under the Revised Statutes. (Holmes v.Davis,
The complaint alleges a demand for the possession of the premises, the service of a one month's notice in writing, and that the defendants unlawfully withhold possession from the plaintiffs, and asks for double damages. It does not allege the holding over of the defendants is willful. It seems to *328
me that such an allegation is essential to a good cause of action under section
The judgment should be reversed and a new trial granted, with costs to abide the event.
CULLEN, Ch. J., GRAY, HAIGHT, VANN, WILLARD BARTLETT and CHASE, JJ., concur.
Judgment reversed, etc. *329