Lockwood v. Tracy

| Conn. | Oct 15, 1878

Granger, J.

The main question in this case is substantially disposed of in the cases of Rockwell v. Bradley, 2 Conn., 1" court="Conn." date_filed="1816-11-15" href="https://app.midpage.ai/document/rockwell-v-bradley-6573113?utm_source=webapp" opinion_id="6573113">2 Conn., 1, Wakeman v. Banks, 2 Conn., 445" court="Conn." date_filed="1818-06-15" href="https://app.midpage.ai/document/wakeman-v-banks-6573257?utm_source=webapp" opinion_id="6573257">2 Conn., 445, and Magill v. Hinsdale, 6 Conn., 464" court="Conn." date_filed="1827-07-15" href="https://app.midpage.ai/document/magill-v-hinsdale-6574133?utm_source=webapp" opinion_id="6574133">6 Conn., 464. The case last cited holds distinctly and unequivocally that “ a tenant of a mortgagor in possession after the mortgage has become forfeited, may attorn to and take a lease from the mortgagee, after which he will be liable to the mortgagee for the rent during the continuance of the lease.” In this case Peters, J., says, in delivering the opinion of the court, (page 469:) “It is a general rule that a tenant cannot deny the title of his landlord. But the defendants have not done nor attempted such an act. They had merely attorned to their lord paramount. If the legal estate passed to the bank by the mortgage executed by the plaintiff, (he had executed the mortgage as agent of the Middletown Manufacturing Company,) he acquired the equity of redemption only by the levy of his execution. His tenants were liable to be treated as tort-feasors, which they might lawfully avoid by submitting to the claim of the mortgagee.” Judge Peters also cites with approval Jones v. Clark, 20 Johns. Reps., 51, in which it was decided by the Supreme Court of New York that the tenant of a mortgagor in possession, after the mortgage has become forfeited during the continuance of the lease from the mortgagor, may attorn to and take a lease from the mortgagee, and in an action brought against him by the mortgagor for rent under his lease he may set up such attornment as a legal defence. The case at bar is stronger than the cases cited, from the fact that in it there has been a foreclosure by the mortgagee, and the mortgagor has been decreed by the judgment of the Superior Court to be forever barred of all right to redeem the mortgaged premises after the first Monday of August, 1876.

The mortgagee also had obtained judgment in ejectment against the mortgagor. Albert Seeley, the mortgagor, and the assignor of the plaintiff Lockwood, when he assigned the claim in suit had, as against the mortgagee, Alexander Hubbard, no legal or equitable title to the premises and no right to the rents accruing therefrom; and the plaintiff took nothing by his assignment of the rent, unless his claim is correct that the executors of Hubbard had no right to receive the rent from Tracy the defendant, and that Seeley had the right to hold possession and receive the rent till the expiration of the last law day, namely, the first Monday of October, 1876, the time limited for Daskam to redeem. Neither of these claims of the plaintiff can be sustained. The fact of Hubbard’s death can neither increase nor diminish the rights of Seeley, nor change his status in respect to the property as fixed and determined by law and the decree of the Superior Court. He had no greater fights after than before the death. His rights as mortgagor were fixed when he executed the first mortgage deed, and those rights were protected and secured by the court in its decree of foreclosure and judgment in ejectment.

The mortgagee Hubbard, even before the foreclosure and judgment in ejectment, had the legal right to the possession of the mortgaged premises. At the time of his decease he had both the legal and equitable right to possession, and if he could obtain possession peaceably had a clear right to do so. This right was not suspended or in any way affected by the fact that the court had limited a time for redemption.

But it is claimed by the plaintiff that the executors of Hubbard have no right to the possession of the mortgaged premises; that only his heirs could enter; and that therefore the defendant had no right to attorn to the executors. It is also claimed that as their right to enter, if at all, was as representatives of Hubbard, they ought to have brought a scire facias for the revival of the judgment in ejectment in his favor, which could not otherwise be enforced. But their right to demand possession and the rents did not depend at all upon the judgment in ejectment. They had that right as representatives of Hubbard just as he would have had it himself. It is entirely clear that the defendant was justified in recognizing their rights when they asserted them, and paying the subsequently accruing rents to them. They were entitled by statute (Gen. Statutes, page 392, see. 28,) to have the possession, care and control of the real estate of their decedent, and all the products and income of such real estate vested in them in the same manner as personal property during the settlement of the estate. At the time of the attornment the executors might well treat the mortgaged premises as real estate belonging to Alexander Hubbard. The law day of Seeley had expired, and the estate in justice and equity ought to have the full benefit of the property pledged or the money for which it stood pledged. The attornment worked no injury to Seeley. If he had determined to redeem Godfrey and Daskam, the fact that the executors of Hubbard were in actual possession of the premises, or that Tracy had attorned to them as his lord paramount, could in no way interfere with his redeeming the subsequent mortgages, and if he had so redeemed and then tendered to the executors in the name and stead of Godfrey and Daskam the amount due the estate of Hubbard, less the amount of rents and profits received by the executors, undoubtedly they would have been ready and willing to receive such amount and release their claims.

But no such attempt or offer was made by Seeley, and it is apparent that he had no intention of redeeming, as the case finds no effort made by him in that direction. The attornment was properly made by Seeley, and properly received by the executors.

A new trial is not advised.

In this opinion the other judges concurred.