| Conn. | Nov 15, 1816
The question is, whether an action of dis-seisin can he maintained, by the mortgagee, against the mortgagor, who continued in possession, without notice to quit.
The mortgagee, on the execution of the deed, is vested with the fee of the land, and is entitled to the immediate possession, though the law day has not elapsed. It is, however, the understanding of the parties, that the mortgagor shall retain the possession.
Toe principle contended for, on the part of the defendant.
To decide this question, we must consider the nature of the right of a mortgagor in possession. He has been likened to a tenant at will ,* but the resemblance is very remote; for, it is agreed, he would not be entitled to emblements, or accountable for rent. The truth is, such an estate is of a peculiar nature, precisely resembling no other. Lord Mansfield, says, in Keeeh v. Hall, Dougl. 22., he is a tenant at will in the strictest sense. Though the inference from the fact that the mortgagor is left in possession, is an agreement that he shall continue it, yet this is under this condition, that he is so entirely subject to the will of the mortgagee, that lie (the mortgagee) may consider his possession to be lawful, or treat him as a disseisor, without notice to quit. This results from the nature of an estate in mortgage, where the object is to give the mortgagee an absolute power over the pledge to enable him to secure or enforce the payment of the debt.
There is no inconsistency in the agreement that the mortgagor may continue in possession liable to a suit at the will of the mortgagee. Where a landlord gave a tenant notice to quit, at a certain time, but promised not to turn him out, unless the premises were sold j. when sold, the tenant refused to deliver possession, and, on ejectment brought, contended that he could not be made a trespasser w ilhout further notice to quit, as the notice given was waived by the promise : the court held, that this w as no waiver, because the landlord retained all the rights acquired by the notice to quit, and it was a mere indulgence that the tenant should remain in possession till the premises were sold. Whiteacre d. Boult Symonds, 10 East 13. So here the mortgagee indulges oi suffers the mortgagor to remain in possession, reserving the right to bring an action of disseisin against him, at pleasure, without notice, or demand.
It is further said, it has been decided, that a sale of the mortgaged premises by the mortgagee, when the mortgagor was in possession, was not within the statute against the
Where an express agreement is made by the parties respecting the possession, that must govern.
I would not advise a new trial.
If the defemlani would have availed himself of want of notice to quit, lie ought to have claimed that he was in possession by the license of the plaintiff ; and this should have been left to the jury as a fact for them to find. So general is the usage for the mortgagee to permit the mortgagor to continue in possession, that 1 should have no doubt but the mere fact of his continuing in possession, when taken in connexion with the nature of the conveyance, would warrant a jury in finding a license, unless other circumstances should appear, adapted to remove the presumption arising from such fact. .But the court cannot infer one fact from another as matter of law. In the action of trover, a demand and refusal are evidence of a conversion ; hut the court cannot, as matter of law, infer a conversion from a demand and refusal. The case of Denn d. Brune v. Rawlins, reported in the 10th of East 2G0. supports this opinion. In that case, the defendant had been in possession under a
It has been said, that the mortgagee may sell his interest in the land while the mortgagor remains in possession, without subjecting himself to the penalties of the statute against selling disputed titles; and also, that a fifteen years’ possession of a mortgagor will not bar a right of entry, of the mortgagee. But in these cases, the mortgagee proceeds on the ground that the mortgagor is in possession by his license ; and there is no doubt but he may elect to consider him as his tenant, if he chuses. In the present case, the mortgagee proceeds on the ground that the mortgagor is a tort-feasor, which throws the burthen on him of shewing a licence.
The only point in this case, is, whether the mortgagee can recover in ejectment against the mortgagor, before the law day has expired, without demand, or notice to quit.
I presume this is the first time this question has been presented to the consideration of this Court. To decide it correctly, I apprehend, wc have only to enquire what is the relation between mortgagor and mortgagee. I consider the mortgagor as remaining in possession by the implied consent of the mortgagee, until the law day has expired j I say, by the implied consent, because such is the universal usage, where no express stipulation is made to the contrary.
Whenever a person is in the possession of the ¿lands of another, by his consent, and without an express contract, lie is the tenant of the landlord at will. Such is the case of the mortgagor. He holds at the will of the mortgagee by his implied consent, and cannot be considered a disseisor, (unless he does an act inconsistent with such tenancy) until the termination of the will of the mortgagee, manifested by notice to quit, or a demand of the property, and refusal to give possession. I am,.-therefore, of opinion, that the charge was incorrect, and that a new trial ought to be granted.
This case states, that two objections were made by the defendant, at the trial, to a recovery by the plaintiff's, of that part of the lands demanded, for which they had a verdict : First, that the moitgagc deeds were usurious and void: secondly, that the defendant was a mortgagor, and not liable to be sued in ejectment without a pre\ ious notice 1;o quit. The first was found against him by the jury ; and the other w as over-ruled by the court; and the question now is, whether the direction to the jury was right.
1. am of opinion that it was. The mortgage deeds arc in common form, and do not. contain, as is now usual in England, any express agreement, that the mortgagor shall continue in possession until the day of payment. The mortgagee, upon the execution of the deed, has a right to the possession, subject how'cver to be dispossessed, and have his deed defeated, by payment of the money, I know of no difference between a conditional, and an absolute deed, in respect to the right of possession, or of action to recover the possession. The grantor in both may be left in possession j and the possession of both, may be such as that a license to continue in possession may be inferred ; and so, if an action should be brought without notice or demand, the jury might be author-ised to find that the defendant was not a disseisor, — that he was holding by license. In neither case, is he necessarily so : and the court in this case were called upon to say, that from the nature of the title the defendant was necessarily holding by the license and consent of the plaintiff. If the court had been called upon to instruct the jury, that from the nature of the plaintiff’s title, from his having left the defendant in possession, and seen him occupy and take the rents and profits, and other circumstances, they were at liberty to presume an agreement between the parties that, the defendant should remain in possession until demand ; and the court had refused so to instruct the jury ; it: would have presented a very different question for our considera-lion, upon which I give no opinion ; although 1 apprehend, this case furnishes sufficient evidence to repel ail such presumption. The defendant denied that he wras holding under the plaintiffs ; and the object of this suit, -was, probably, to try the validity of the plaintiff’s deed.
There is nothing in the nature of the title, which forbids a recovery ; and the practice of our own courts is evidence of
But I apprehend, there is nothing to be found in the English authorities to warrant the opinion that this objection ought to prevail; but the contrary.
It is true, there is no adjudged case. But in Powell on Mortgages, chap. vii. p. 205., it is said, that the mortgagee may immediately enter upon the lands. Nor is the mortgagor entitled to notice to quit. Id. p. 20r. In Keech v. Hall, Dougl. 21., which was an action by the mortgagee against a tenant of the mortgagor, who was left in possession, Lord Mansfield says, « but here 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 lie shall possess the premises at will in the strictest sense, and therefore no notice is ever given him to quit, and he is not even entitled to reap the crop,” &c. It can hardly be credited, that Lord Mansfield would thus state the law, if it was not considered as settled in that country. He says, no notice is ever given to quit.
In Thunder d. Weaver v. Belcher, 3 East 449., Lord Ellenborough interposes in the argument of counsel, and expressly recognizes the authority of Keech v. Hall, as decisive against the claim of notice to quit. ⅛ giving his own opinion iu that case, he says, “ but a mortgagor is no more than a tenant at sufferance, not entitled to noth e to quit/’ In Birch v. Wright, 1 Term Rep, 383., Bailer, J., speaking of a mortgagor, says, he is neither tenant at wi‘1 nor sufferance. « lie is not considered as tenant at will in those proceedings which are in daily use between a mortgagor and mortgagee ; I mean, in ejectments brought for the recovoir of the mortgaged lands. If he were tenant at will, the demise could not. be laid on a day antecedent to the determination of the will. But it is every day’s practice to lay the demise on a day long before there has been any actual determination of the will: sometimes back to the lime when the mortgage became forfeited ; and no objection has ever been made on that account.” Again, «'the nmitgagco has a right to the actual possession whenever lie plmisr.- : hr may bring; his ejectment at any
In 2 Wooddeson’s Lectures, 153. in notis, speaking of tlir. likeness of a mortgagor’s interest to a tenancy at will, the author says, “ in one respect, at least, his interest is interior, viz., that he may be turned out of possession by ejectment. without notice to quit.” Cruise in his Digest, til. Moriré, says, it is settled law that ejectment may he brought w ithout such notice. I think it must, therefore, be admitted;, that in England no such notice is necessary. In contemplation of law, the mortgagee is in possession, and may maintain ejectment.
One case, however, is cited, where a different doctrine has been held in a neighbouring state: fino of Jackson d. Benton v. Laughhead, 2 Johns. Rep. 75. With all my respect for the court where this case was decided, and the learned .1 tidge who pronounced the opinion in that case, 1 cannot consider it as law. That case was decided without argument, and by a divided opinion, Thompson, now Chief J ustice, dissenting ; and the case seems rather to proceed on a rule of practice, and the supposed hardship of suffering a mortgagor to be sued without notice, than any thing else; and the learned Judge intimates, that six months would be reasonable notice. Now, I do not consider it as matter ol' practice to be regida ted by every court at pleasure, if indeed it was settled, that, the defendant was entitled to any notice, the time of that notice might be matter of practice.
As to the supposed hardship, I believe the cases wilt he verj few in which it will he experienced. Mortgagees are not dc - sirous of taking possession of a mortgaged estate before foreclosure, and becoming accountable for the rents and profits, W hy not hold notice of a petition to foreclose necessary t This would give much more relief to the mortgagor. Editions will often he brought., perhaps oppressively ; but eject-ments very rarely, if ever: unless, as in this case, the mortgagor denies the title of the mortgagee.
And this brings me to another point, not made at the bar., but already hinted at, which I consideras decisive of this case, if the general question be settled either way. The. case states, that the defendant claimed, in the first place, that the relation of mortgagor and mortgagee did not subsist between him and
Í am therefore of opinion, that the charge to the jury was right, and would advise against granting a new trial.
The single question before the court, is, whether notice to quit was necessary, previous to the commencement of the plaintiffs’ suit ? The defendant is mortgagor, and the plaintiffs are mortgagees, of the demanded premises. As is customary, the mortgagor remained in possession ; the law day had not arrived; and the plaintiffs, without any previous notice to the defendant to quit the estate mortgaged, commenced their action of ejectment. In view of these facts, was the defendant a disseisor ?
Waiving all authority for the present, and looking at the intrinsic nature of the transaction, I am of opinion that there has been no disseisin. “ A disseisin, is putting a man out of seisin, and ever implieth a wrong.” Co. Litt. 153. 6.181. a. 2 Bla. Comm. 195. 3 Bla. Comm. 169. Taylor d. Atkyns, v. Horde & al. I Burr. 110, 111, What rerang has the defendant committed ? He has, pursuant to the general usage, and of consequence, with the implied consent of the plaintiffs, retained possession of the estate mortgaged. The mortgagees have never requested the possession. Where, then, is the wrong ? What higher evidence can be desired, of a licence that the mortgagor should remain in possession, than that which is derived from this conduct of the parties ? The most explicit language could not he more convincing.
Undoubtedly, the mortgagees, if there had been no agreement that the mortgagor should retain possession, might immediately lone entered. I Pow. Mart. 205. This right they did not think proper to exercise, but. permitted the
If the occupation of the preuiis by the mortgagor was not tortious, liow can he be found guilty of a disseisin ? If it were wrongful, and he a disseisor, his possession was adversary, and uninterruptedly continued for fifteen years, would have given him a legal title, to the.premises. But it is an established point, that no length of possession by the mortgagor-comers a lisle, for this plain reason, that it is not adverse. How then, if his possession is not adverse, unless contradictory propositions are consistent, can he be considered a disseisor :
It must, he admitted, that the defendant was a wrong-doer, or a tenant of some description. That he was not the former, Í think, is clear; and if he was the latter only, he has-committed no disseisin. Notice to quit is requisite, to render the possession even of a tenant at will, or sufferance, adverse. 2 Bla. Comm. 146. 150. Birch v. Wright, 1 Term Sep, 387. Goodtitle, d. Gallaway, v. Herbert, 4 Term Rep. 680. Parker, d. Walker, v. Constable, 3 Wils. 25. Timmins v. Rowlinson, 3 Burr. 1609. Doe, d. Bromfield & ux. v. Smith, 2 Term Rep. 436. At least, in this case, a countermand of the implied licence to possess, was indispensably necessary.
It was said in the argument, that if the grantor of an absolute; estat vin fee simple should remain in possession, he would, unquestionably, be considered a .disseisor. Of this there is no question ; but where is the analogy between that case, and. the one, under discussion ? The mortgagor is the owner of the estate mortgaged; “ and the mortgagee has but a chattel, notwithstanding the form, the mortgage being only a pledge to him for the security of his money, and the original ownership of the laud still residing in the mortgagor, subject only to the legal title of the mortgagee, so far as such ¡Ule is requisite to the end of Iris security1 Pow. Mort. 221, It is for this reason, that: there exists an usage almost universal, to permit the mortgagor to retain the possession.
It has been taken for granted, that an ejectment might be sustained against the mortgagor, without any previous notice
It has been repeatedly decided in the state of Meyo-Vork, that before the mortgagee brings his action of ejectment against his mortgagor, he must give him notice t-⅞ quit, the
How extensive the practice has been in this stale, to sustain actions of ejectment against mortgagors, .without notice to quit, I am not informed: but, admit it to have been universal. A practice adopted without any legal sanction, and continued sub silentio, is too feeble a foundation on w hich to decide in opposition to plain principles. .
It is of little importance, considering the judgment of Ihc-court, from which I have the misfortune to dissent, that I should express my opinion on the nature of the notice tJiai should be given to mortgagors in possession. Rut, to avoid all misconception on this subject, I would observe, that a countermand of the implied licence, for a reasonable time, and in a reasonable manner, is all that I should deem requisite.
The direction to the jury was, in my opinion, wrong. I know of no case, in which it has been determined, that a mortgagor in possession, is liable to the mortgagee, in trespass or ejectment, under circumstances like the present. And such a determination would, in my judgment, be repugnant to the plainest principles of law and justice. The cases of Keech v. Hall, Dough. 21., of Thunder d, Weaver v. Belcher, 3 East 449. and Jackson d. Ferris v. Fuller, 4 Johns. Rep. 215., were all between mortgagees and the assignees, or under-tenants, of their mortgagors : and may, therefore, be laid out of the question, agreeably to the distinction taken in Jackson d. Simmons al. v. Chase, 2 Johns. Rep. 84., and Jackson d. Ferris v. Falter, before cited. For as a mortgagor has, confessedly, no power to create an under-tenanc) : an) one, holding under him, by a lease or license subsequent
But the question is very different, whether the mortgagor, when left in possession, is to be subjected to damages and costs of suit, without even a previous demand that he should surrender the possession, and when lie was, perhaps, ready to surrender it, upon a moment’s warning. The only original foundation of the supposed rule, that a mortgagor is liable to a recovery, in such a case, is a dictum of Lord Mansfield’s in Ketch v. Mall. But even that dictum contemplates, in my judgment, no such rule: For it manifestly relates, not to notice to quit, given before action brought, to a tenant at will, as such, but only to the six months’ previous notice, required to be given, in cases of tenancy from year to year; though it appears, I confess, to have been understood in a more extensive sense, in the subsequent case of Thunder d. Weaver v. Belcher. But it is particularly worthy of remark, that the observations made in the latter case, in relation to the liability of the mortgagor, without notice to quit, are founded, professedly, upon the dictum in Ketch v. Hall: and upon what I humbly conceive to have been a mistaken construction of it. The dictum in question is, that 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 him to quit.” But by a tenant at will in the “ strictest sense,” nothing more is meant, by Lord Mansfield, than a tenant at will, in the original, strict, and proper sense of the term, as contradistinguished from a tenant from year to year. For the very distinction, and the only one to which he was adverting, was that between the rights of a mortgagor, or his assignee, in possession, on the one hand, and those of a tenant from year to year, on the other. And that the notice, to which he refers, is the six months’ notice, required IS be given to a tenant from year to year, is perfectly manifest, not only from his words, already cited, but from the context. For he observes, that the mortgagor possesses at will, in the strictest sense, and « therefore, no notice is ever given him to quit.” But a tenant: at will, in the strictest sense, known to the law, is, and a!v ays was, entitled to notice to quit, either by an express declaration, or some oilier art, of
Admitting then, that the dictum in Keech v. Hall is correct, (and according to what I take to be the true construction of it, there is no need of questioning its accuracy:) it does not decide nor affect the present case. For the question here raised, is not, whether a mortgagor left in possession is entitled to six months’ notice, as tenant from year In year : but whether, as a strict tenant at will, he is entitled to any notice at all, however short, before action brought ? That a common (or strict) tenant at will, is entitled to such notice, is unquestionable, from the authorities already cited. And it is equally unquestionable, that a mortgagor left in possession, is a strict tenant at will, or at sufferance, by an implied agreement or license from the mortgagee. It is incorrect to say, that an actual- license must be proved by the mortgagor.
It has been suggested, that the consequence of a determination in favour of the defendant, would be, Unit mortgagees would keep their mortgagors continually under a notice to quit. It may be so ; though L have not the least apprehension of any such consequence ; especially, as it could answer no purpose on cither side : for mortgagees have now, confessedly, a right to give notice at any moment they please. At any rate, no injustice, would be done. For if a mortgagor should persist in holding possession, after the time appointed to quit, he would be actually a wrong-doer, and justly liable to be treated as such.
New trial not to be granted.