74 Ala. 162 | Ala. | 1883
— The rule is well settled, and is not questioned, that a tenant can not dispute the title of his landlord, nor set up a paramount title in himself, or in a stranger, to defeat any action the landlord may institute for the recovery of rent, or, when the term has expired, to regain possession of the premises. There are various exceptions to, and qualifications of the rule, which are of as much importance as the rule itself, and which must be observed in the administration of'justice between landlord and tenant. A plain mistake of facts constitutes one of the exceptions. The tenant may show that he at
The estoppel operates only to preclude the tenant from disputing the title of the landlord at the time when the lease was made, and possession given; but not from showing that the title which the landlord then had was defeasible, or limited in its nature, and has since been defeated, or has expired by its own limitation. — 2 Smith’s Lead. Cases, 752. Hence, evidence that the landlord has assigned the reversion, and that the tenant has attorned to the assignee; or that, under a judgment and execution, the reversion has been bought in by the tenant, or by a third person, to whom he subsequently attorns to avoid eviction, will make a good defense to an action by the landlord for the recovery of rent, or of possession. — Randolph v. Carlton, 8 Ala. 606; Pope v. Harkins, 16 Ala. 321; English v. Key, 39 Ala. 131; Otis v. McMillan, 70 Ala. 46. In these cases, the tenant does not dispute the title of the landlord — does not deny that, at the time of the demise, he had the right to make it; but avers that the title then existing has expired. In Randolph v. Carlton, supra, the court said : “ By receiving possession from another under a lease, the tenant impliedly admits that the lessor had such title as authorizes him to dispose of the premises; but he can not be held to affirm any thing in respect to its continuance; consequently, it is allowable for him to show that the title has expired, or been extinguished by operation of law.”
' The point of contention in this case is, whether the title of the lessor, existing at the time of the lease under which the lessees entered into possession, has expired, or been extinguished. We do not deem it necessary to inquire, whether, if the title of the lessor was derived wholly from the conveyance of the lands to her by the devisee, Mrs. Simonton, the tenants having assumed the relation of administrators of the testator, subsequently to the lease, and in that relation having the legal right to the possession, and to intercept the rents and profits, would be heard to gainsay the title of the lessor. It may be true, as was said upon this point, in another case between these parties, that “ their legal metamorphosis, from mere tenants to administrators, was their own act, and renders none the less necessary the surrender of their possession to the plaintiff, be
Whatever may be the theory of a mortgage of lands elsewhere recognized, it is settled in this State, by a line of decisions which have become essential to the safety of titles, that it is more than a security for a debt, or a mere chattel interest. “It creates a direct, immediate estate in lands; as against the mortgagor, and those claiming in his right, afee simple, unless otherwise expressly limited. The estate is conditional — annexed to the fee is a condition which may defeat it. The mortgagee, if in the conveyance there is not a reservation of possession to the mortgagor, until default in the performance of the condition, has the immediate right of entry, and may eject the mortgagor or his Tenants. If the mortgagor is permitted to remain in possession, he is the mere tenant at will of the mortgagee. After the law-day, and default in the performance of the condition, at law, the estate is absolutely vested in the' mortgagee —the estate is freed from the condition annexed to it. Nothing remains in the mortgagor but the equity of redemption, of which courts of law take no notice.”— Welsh v. Phillips, 54 Ala. 314; Paulling v. Barron, 32 Ala. 11; Barker v. Bell, 37 Ala. 358; Slaughter v. Swift, 67 Ala. 494; Toomer v. Randolph, 60 Ala. 356. The payment of rent to a mortgagee who is in possession, or to whom the tenant has attorned to avoid eviction, is an extinguishment of the rent, relieving the tenant from liability to the mortgagor, thou-gh under him the tenant may have entered originally. — 1 Smith’s Lead. Cases, 938.
The rents and profits a mortgagee in possession may receive, a court of equity will apply, when' the mortgagor claims redemption, to the payment of the mortgage debt. The law does not make the application ; for, at law, the rents and profits accrue to the mortgagee, as the owner of the legal estate. It is only in equity the application is made, and then, as an equitable set-off, and as an incident to the right of redemption. Toomer v. Randolph, 60 Ala. 358. At law, there can be no inquiry, to defeat the legal estate of the mortgagee, into the existence, or payment, or extinguishment of the mortgage debt. — Slaughter v. Swift, 67 Ala. 494.
The title of the lessor, derived from the mortgage, in the contemplation of a court of law, has not expired, or been extinguished. It remains, as it- existed when the tenants accepted the lease, and entered into possession, thereby admitting its validity, and its sufficiency to support the demise. If, as ad
We find no error in the record, and the judgment must be affirmed.