Simmons v. Brown

7 R.I. 427 | R.I. | 1863

The cases cited in support of the demurrer do not, in general, apply to the question submitted to us. The defendant does not rely upon an outstanding title in a stranger, but defends his possession by setting up a superior title to that under which the plaintiff claims, derived to himself puisdarrein, and so pleaded. The defendant, as mortgagor in possession, was, when the execution against him was levied upon the mortgaged estate, but a tenant at sufferance to his mortgagee, with the right, it is true, to protect his possession by redeeming the mortgage. The sale of his interest upon execution imposed no obligation upon him to redeem the mortgage for the benefit of the purchaser at the sheriff's sale, nor created any such relation between them as disentitled him to acknowledge the superior title of his mortgagee, which he had granted, and to accept a lease from him to protect his possession against the adverse claim of the purchaser. On the other hand, the mortgagee was entitled to possession both against the mortgagor and those claiming under him, or adversely to him, by law, under his title. Keech v. Hall, Doug. 21; S.C., 1 Smith's Lead. Cas. 293, 295-298, margin and 491-497, top pages, and notes and cases cited; Dexter v. Phillips, 1 Sumn. 116;Randall v. Phillips, 3 Mass. 386; Kimball v. Lockwood Smith, 6 R.I. Rep. 138. Accordingly, in Doe v. Barton, 11 Ad. Ellis, 315, it was held, that in ejectment, the tenant may protect his possession against his landlord, by showing that the title of the landlord was defensible under a mortgage granted by him prior to the lease, and that to avoid actual eviction he had been compelled to pay rent to his landlord's mortgagee, and thus put him in constructive possession of the mortgaged premises. If this be so, as between the mortgagor and his own tenant, how much more between the mortgagor and the purchaser under an execution against him, whose relation imports no such loyalty due from the former to the latter, as is due from tenant to landlord. It seems absurd, as reasoned by Lord Denman, in the above case, since the mortgagee might have ejected the mortgagor, and afterwards let to him, to require them to go through the form of an ejectment, in order to put them into the very position in which they now stand. In such case, the remedy of the plaintiff would have been to redeem the mortgage to which his title by execution was subject; and this is now equally open to him.

The demurrer is overruled.