Lane v. King

8 Wend. 584 | N.Y. Sup. Ct. | 1832

By the Court, Sutherland, J.

The question in this case Is whether the lessee of a mortgagor is entitled, as against the mortgagee, to the crops growing on the mortgaged premises at the time of the foreclosure and sale, the mortgagee having become the purchaser. In England the mortgagee may sustain an action of ejectment against the mortgagor or any one claiming under him, by title subsequent to the mortgage, without any notice to quit 5 they are considered mere tenants at will. Keech v. Hall, Doug. 21, Moss v. Gallimore, id. 269. Powell on Mortgages, 205, 6, chap. 7. In this state, however, it has been held that a mortgagor is entitled to notice to quit before he can be treated as a trespasser, on the ground that there is an implied. consent and agreement between him and the mortgagee, that the former may continue to occupy the premises. Jackson v. Longhead, 2 Johns. R. 75. Jackson v. Fuller, 4 J ohns. R. 215. McKercher v. Hawley, 16 Johns. R. 289. A purchaser of the interest of the mortgagor, or a lessee under him, or any third person, stands upon the same footing here as in England, and is not entitled to notice to quit from the mortgagee. There is no privity of contract or estate bétween the mortgagee and such third person—as to him they are trespassers. 4 Johns. R. 215. 16 id. 289. 20, Id. 61. The English doctrine, therefore, in relation to the rights of a mortgagee against a mortgagor, or his grantees or assignees, is entirely applicable to this case.

In Keech v. Hall, Doug. 21, already referred to, the mortgagee brought an action of ejectment against a tenant, who claimed under a lease from the mortgagor, given after the mortgage, without the privity of the mortgagee. Lord Mansfield in delivering the opinion of the court, said, “ On full consideration we are all clearly of opinion, that there is no inference of fraud or concert against the mortgagee to prevent him from considering the lessee of the mortgagor as a wrong doer. “ The question turns upon the agreement between the mortgagor and mortgagee; when the mortgagor is left in possession, the true inference to be drawn is an agreement that he shall possess the premises, at will,in the strictest sense, and therefore no notice is ever given to quit, and he is not even entitled to reap the crop as other tenants at will are, because all are liable to the debt, on payment of which the mortgagee’s title ceases. The mortgagor has no power, express or implied, to let leases not subject to every circumstance of the mortgage; the tenant stands exactly in the situation of the mortgagor.

This court, in M’Kercher v. Hawley, 16 Johns, R. 292, also held that the relation subsisting between the mortgagor and mortgagee, did not imply a right on the part of the mortgagor to lease. The mortgagor, therefore, in giving a lease becomes as to the mortgagee, a disseisor; vide also Jackson v. Hopkins, 18 Johns. R. 487; Jackson v. Dickerson, 6 Cowen, 147; Woodfall, 237; and if during the disseisin, he should cut down the grass, trees or corn growing on the land, the disseisee after re-entry, may have an action of trespass vi et armis against him for the trees, grass or corn ; for after re-entry, the law, as to the disseisor and his servants, supposes the freehold always to have continued in • the disseisee, though perhaps trespass vi et armis would not lie against the lessee, for the fiction of law shall not by relation make him, a wrong doer vi et armis, who comes in by color of title, because in fictionsjuris semper esquitas existat. Lifford’s case, 11 Coke, 51. But though the lessee shall not be treated as a trespasser, still if he cuts the grass and trees, or sows the land and cuts and carries away the crops, they may be recovered by the disseisee after re-entry; the re-entry by relation revests the property in him, as well for the emblements as the freehold, and equally against the feoffee or lessee óf the disseisor, as against the disseisor himself, though it will not, as against a person coming in by color of title give him an action of trespass vi et armis'. 11 Coke, 51. Dyer, 31, 173. Powell on Mortgages, 213, 14, chap. 7. Mr. Powell observes, that as to emblements there is a distinction between tenants who have particular estates that are uncertain, defeasible by the act of the parties, or by the act of God, or those who have particular estates uncertaindefeasible by a right paramount; for in the latter case, he that hath the right paramount, shall have the emblements. The mortgagee undoubtedly, as against the mortgagor and his grantees, has the paramount right. Mr. Powell considers the right of mortgagee to emblements as against the lessee of the mortg igor, as necessarily resulting from the doctrine established by Lord Mansfield, in Keech v. Hull, Doug. 21, that a mortgagor has no right to lease; he observes, that he can see no ground on which the case of such lessee, ds to emblements, can be distinguished from any other tenant under a tortious title ;. for if he be considered a wrong doer as to his occupation of the premises, he cannot be considered in a different character as to the emblements, nor can there be any ground to imply a consent to cultivate the property, when no implication is admitted of a consent to occupy it. Jacob’s Law Dict. Emblements. 4 Rep. 21.

This reasoning appears to me to be conclusive. The plaintiff, therefore, according to the stipulation of the parties in the case, is entitled to judgment for forty dollars damages and thirty dollars costs.