21 N.J.L. 637 | N.J. | 1846
(with whom Whitehead, Randolph, and Speer concurred), delivered the following dissenting opinion s
The judge at the trial refused to permit the defendant to prove improvements made, not by Sanderson the tenant, hut by Smith the mortgagor, under whom Sanderson had gone into possession. In this he was clearly right. Lasting improvements made in good faith by the defendant, have been allowed him in this action, against the rents and profits claimed by the plaintiff. 2 Greenl. Ev. § 337. But it is difficult to see on
The real question in this cause is, whether the action of trespass for mesne profits lies against a lessee of the mortgagor, subsequent to the mortgage, after recovery in ejectment and entry by the mortgagee. In my opinion the action will lie.
In Vermont it has been so expressly decided. It has been there held, that the mortgagee is entitled to recover the rents and profits against the assignee of the mortgagor from the time of notice to quit by the plaintiff, .or in the absence of such notice from the commencement of the action of ejectment. Babcock v. Kennedy, 1 Verm. Rep. 457; Lyman v. Mower, 6 Ib. 345. In Wilder v. Houghton, 1 Pick. 87, it was held otherwise. As remarked by counsel on the argument, whatever may be the true doctrine of the common law, the case last cited was probably decided rightly upon the local and peculiar law of Massachusetts in relation to mortgages. Standing upon their peculiar law of mortgage, it was entirely unnecessary for the court in that instance to appeal to foreign authority to sustain its judgment, and in which appeal, as it seems to me, the court fell into error as to the effect of the authorities cited by them. Undoubtedly the mortgagor or his assignee in possession cannot be called upon to account for the rents and profits to the mortgagee and for the reason given in the cases cited: the party by his ejectment may dispossess the tenant, and thereby entitle himself to the rents and profits at law. There can be no decree to account for rents received by the mortgagee in his own right, though by the implied assent of the mortgagee. But upon the withholding of that assent, then the mortgagee is referred by courts of equity to his legal remedies.
I have not been able to find one English case, in which the point has been expressly decided. It seems, however, strongly implied in Keech v. Hall, Long. 21, that the action will lie, and that case is cited for this point, in Adams on Ejectment, p. 384, (N. Y. Ed. 1840.) Lord Mansfield, in delivering the opinion of the court in Keech v. Hall, by which it was settled that a mortgagee might recover in ejectment against such tenant, with
The recovery in ejectment is conclusive evidence of the lessors title from the time of the demise laid in the declaration: but of his right to recover the mesne profits of the defendant in ejectment, only from the time of the service of the declaration. Aslin v. Parker, 2 Burr. 668; Dodwell v. Gibbs, 2 C. & P. 615. But it seems sufficient to enable the plaintiff to recover some damages from the time of service of the declaration. If the plaintiff seek to recover mesne profits for an antecedent period he must give distinct evidence of the defendant’s possession, or of whatever may be necessary to entitle him so to recover.
The tenant while in possession under the implied assent of the mortgagee and paying the rents and profits, under that implied assent, to the mortgagor, cannot during that period be held also responsible to the mortgagee. But if the mortgagee
In Liford’s ease, (11 Co. 51,) there is a dictum of Lord Coke, that the disseisee, after re-entry, cannot recover in an action for mesne profits against the feoffee, lessee, &c. of the disseisor; but that in such case the disseisee shall recover all the mesne profits against the first disseisor. The reasons given are, that this fiction of law that the freehold always continued in the disseisee, shall not have relation to make him, who comes in under title, a wrong doer vi et armis ; and that it is to be presumed, that the lessee has given a recompense to the disseisor,
The rule, as stated, is by no means clearly established. Many of the authorities on both sides are collected in the American notes to Moore v. Hussey, Hob. 98 ; in which case the same rule is laid down arguendo, and the same reasons given. The authorities in the older books in conflict with this rule are numerous and respectable ; the rule was stated in Liford’s case extrajudieially ; and Lord Coke himself says, that in his day, there was a great variety of opinions in the books. I think it will be found, that of a later date, the weight of authority is against the distinction. See Com. Dig. “Trespass ” (B. 2;) Holcomb v. Rawlings, Moore 461; S. C. Cro. Eliz. 540; B. N. P. 87; Emerson v. Thompson, 2 Pick. 473; Washington, J. in Green v. Biddle, 8, Wheat. 75; Morgan v. Varick, 8 Wend. 587.
The rule was discussed, although not settled, by Chief Justice Ewing, in Bacon v. Sheppard, 6 Halst. 197. The decision in that case was based on the doctrine of Menvil’s case, which, indeed, seems to be only a more narrow and reasonable application of the same rule. In the rule already adverted to, it will be observed, that the first or actual possession, prior to the period of possession by relation, was disturbed by act in pais, or disseisin without color of law or legal procedure. In Bacon v. Sheppard, the disturbance of the plaintiff was under a legal proceeding by writ of Hah. fa. possessionem, sued out on judgment by default in ejectment; but the judgment and execution being afterwards set aside, lie was restored to possession by writ of restitution. It was resolved, in Menvil’s case (13 Co. 21,) that when possession of land is obtained under an erroneous judgment, and, the judgment being set aside, the original possessor is restored ; he who is thus restored, may maintain an action of trespass against him who obtained possession under the erroneous judgment, and in such action shall recover all the
So in Case v. JDeGoes, 3 Caines 261, cited by Chief Justice Ewing, in which case the person in possession had the possession lawfully. Beyond this the rule cited from JLiford’s case, has been expressly repudiated in the state of New York. In Morgan v. Varick, 8 Wend. 587, the point being directly before the court, Chief Justice Savage, who delivered the opinion, said, that in all the prior cases before that court, in which the expressions of the judges indicated an approval of the rule, the opinion was uncalled for. “ If it be law,” said he, “ any irresponsible person may turn the owner forcibly out of the possession of his real estate, sell the buildings and the timber, and thereby destroy the value of the property; he may sell it, too, under ever so suspicious circumstances, for less than one-quarter of its value, and according to the doctrine quoted, the purchaser is safe, and the owner has no remedy but against the trespasser only. Fortunately for the owners of real estate, such is not. now the law, whatever it may have been in the time of Lord Coke.” The principle involved in Case v. DeGoes, was left untouched : but it was held, that the remedy of trespass for mesne profits extended, as well against a stranger acquiring title from the disseisor, as against the disseisor himself.
It will be difficult to reconcile the rule, as applied by Mr. Coote, with the unquestioned course of decision and practice in the courts both of England and this country at the present
It may be said, that in the case of a sub-tenant just stated, though he comes in by title under the tenant, yet that when he holds over, he becomes an actual trespasser, the disseisor himself, and therefore answerable in damages. As I take it, it is the very case of the lessee of the mortgagor. While he holds under the mortgagor with the implied assent of the mortgagee, lie incurs no responsibility to the latter. But if the mortgagee has done nothing to impair his rights, at his option, at any time, he may call upon the tenant to yield up the mortgaged premises. The mortgagor, while in possession, is sub modo a tenant at will, and liable to be dispossessed without notice; and his lessee, in this respect, has no greater rights than the mortgagor under whom he holds. When therefore the lessee, after notice or on service of a declaration in ejectment, refuses to surrender the mortgaged premises, to the mortgagee, who has thus deter
I apprehend then, that supposing the rule in Liford’s ease to be undisturbed, properly understood it does not stand in the way of the recovery in the present action. The lessee of the mortgagor is himself the disseisor; he holds under no prior disseisor, and does not come within the terms of the rule. It is a point of view, which when considered, perhaps rendered it unnecessary to discuss the soundness of the rule at all.
It only remains to add, that I hold the Chief Justice rightly charged the jury when he said : “ that the commencement of an action of ejectment is equivalent to an entry upon the land, for a right of entry is essential to the commencement of such an action ; and if the actual tenant resists such entry, and prevents the plaintiff from taking the rents and profits, he becomes a trespasser from that time, and ought to respond in damages for the rents and profits.” But I hold further, that for this purpose, not only a service of a declaration in ejectment is equivalent to an entry, but that notice to the tenant by the mortgagee and a demand of possession is equivalent to an entry ; and the tenant, if he hold over after such notice, will be an actual trespasser, and after actual entry responsible in damages. See Danforth v. Sergeant, 14 Mass. 491.
I am of the opinion that the judgment of the Supreme Court ought to be affirmed. Judgment reversed.
Cited in Shreve v. Miller, 5 Dutch. 252; Best v. Schermier, 2 Hal. Ch. 155.
Although clearly against the common law rule, and contrary to the rule previously held in this state, the Court of Errors decided, in a case between the present parties, (Sanderson v. Den. dem. Price, at May Term 1840,) that ejectment will not lie by the mortgagee against the mortgagor until after default made.