97 Tenn. 387 | Tenn. | 1896
This is an action of unlawful detainer .commenced by the purchaser of real estate at a foreclosure sale, under the provisions of a deed of trust, against the mortgagor, to recover possession of the premises. The action is based upon the following stipulation in the deed of trust, to wit: “The said party of the first part further agrees that, in case of any sale hereunder, he will at once surrender possession of the said property, and will, from that moment, become and be the tenant at will of the purchaser and removable by process as upon a forcible and unlawful detainer suit, hereby agreeing to pay the said purchaser the reasonable rental value' of said premises after said sale.” It is agreed that, at the foreclosure sale, the plaintiff, F. D. Griffith, became the purchaser of the property; that a deed was duly executed by the trustee to said purchaser, and that demand was made of the mortgagors, Brackman and wife, for the possession of the premises, which was refused, and thereupon this action of unlawful detainer was commenced. Counsel filed a stipulation of agreed facts, and the only question submitted for the determination of the Court was whether or not this action could be maintained. The Circuit Judge heard the cause without the aid of a jury, and pronounced judgment in favor
Section 4075 (M. & Y.) Code, provides, viz.: “Unlawful detainer is where the defendant enters by contract, either as tenant or as assignee of a tenant, or as personal representative of a tenant, or as subtenant, or by collusion with a tenant, and in either case willfully and without force holds over the possession from the landlord, or the assignee of the remainder or reversion.” Section 4082 (M. & Y.) Code, further provides, viz.: “No notice to quit need be given by the plaintiff to the defendant other than the service of the warrant.”
It was held by this Court, in the case of Ballew v. Motheral, 5 Bax., 602, “that the remedy given by this section was on behalf of landlords and their assignees, against tenants and subtenants, provided the relation had been created by or arose
But it will be observed that the facts of this case present a question which did not arise in the cases mentioned, or in any other reported case, so far as we are advised. It is whether or not a mortgagor in possession may not, in advance, contract with the trustee or mortgagee that in the event a foreclosure becomes necessary the relation of landlord and tenant shall thereby be created between the purchaser and the mortgagor, and upon default of the latter in surrendering possession of the premises, he shall be removable by the writ of unlawful
The judgment will be reversed and judgment rendered here in favor of plaintiff.