40 Iowa 597 | Iowa | 1875
Lead Opinion
The facts are few and are not controverted. October 22, 1867, E. Dorstal executed a mortgage upon the premises to Donovan, to secure a note for $250, due one year thereafter, given for the balance of the purchase money.’ This mortgage was duly recorded October 22, 1869. On January 1870, Groff, the defendant, became, by purchase, the owner of the note and mortgage. November 1,1.870, Dorstal, the mortgagor, leased said premises, by parol, to Leroy, for one year from that date, and he entered, at once into possession. Janu
We deem it unnecessary to set out or review the instructions at length; but will state briefly the law applicable to the
This is clearly the doctrine of *all the- cases, both ancient and modern, unless it may be the case of Cassilly v. Rhodes, 12 Ohio, 88, and that case seems to be based'upon a construction of the appraisement law of that state. And' the yvhole matter is well summed up in Jones v. Thomas, 8 Blackford, 428, as follows: “A mortgagor is not entitled to emblements as tenants at will are, 4 Kent’s Com., 456. A mortgagee may evict the mortgagor without notice, and retain the-emblements; and if a lease be granted subsequently to the mortgage without his concurrence, he may evict the lessee without notice and retain the emblements. Coate on Mort, 351; 2d Swift’s Dig., 156; 2d Cruise’s Dig., 108. The reason of this was said by the older writers to be, that the lessee was evicted by a title paramount, and the lease of the mortgagor amounted to a disseisin of the mortgagee, which rendered the lessee upon entry a wrongdoer. But a sufficient and better reason appears to be, that every person who takes under a mortgagor, tabes subject to all the rights of the mortgagee, unimpaired and unaffected, 4 Kent’s
Eevebsed.
Rehearing
ON BEHEABING.
A rehearing was applied for and granted in this case, and. upon a full and thorough examination of the entire cause the former opinion herein has been modified by changing the closing sentence in next the last paragraph of the opinion, from “ There was no breach of warranty,” to “ There was, therefore, only a technical breach of warranty, entitling plaintiff to nominal damages.” The costs on the petition for rehearing will be taxed to appellant. See further Lane v. King, 8 Wend., 584; Mayo v. Fletcher, 14 Pick. 530.
Reversed.