| Vt. | Feb 15, 1846
The opinion of the court was delivered by
The proceedings in bankruptcy constitute no objection to the prosecution of this action in the plaintiff’s name, as the claim sought to be enforced had been previously assigned to Marsh.
It is objected, that the relation between these parties was not such, even in the outset, as to entitle the plaintiff to support the action of account. But it appears, that their contract was by parol, and, as it would seem, for a year only, — that the defendant was to carry on the farm upon shares, and that the produce was to be equally divided between them. And we think, that, in accordance with the doctrine held in Bishop v. Doty, 1 Vt. 37" court="Vt." date_filed="1827-01-15" href="https://app.midpage.ai/document/bishop-v-doty-6571030?utm_source=webapp" opinion_id="6571030">1 Vt. 37, Albee v. Fairbanks, 10 Vt. 314" court="Vt." date_filed="1838-02-15" href="https://app.midpage.ai/document/albee-v-fairbanks-6572042?utm_source=webapp" opinion_id="6572042">10 Vt. 314, and Ganaway v. Miller, 15 Vt. 152" court="Vt." date_filed="1843-01-15" href="https://app.midpage.ai/document/ganaway-v-miller-6572686?utm_source=webapp" opinion_id="6572686">15 Vt. 152, they would acquire such a joint interest in the crops, when raised, that the action of account might properly be sustained.
We are also disposed to consider that a sufficient demand was made, before bringing the action. A division of the crops was the mode of accounting, which the agreement primarily contemplated. It would seem, therefore, that a timely demand of such division was all that was requisite; and that the plaintiff was not bound to wait until the crops were consumed, or disposed of, and then renew his demand for a different accounting.
Upon the remaining questions in the case the argument has proceeded, as well on the ground that the plaintiff sustained the relation of mortgagor to Fullerton during the period for which the account is claimed, as upon the ground that he had previously divested himself of that character by his general assignment and conveyance to Barnard. It is not perceived, however, that, in this case, these different views of his interest should lead to different results.
If he continued to possess the rights of mortgagor, his liabilities as such were also revived and continued, upon the determination
But it is contended, that as the defendant took possession under the plaintiff, and was not actually evicted, he is estopped to deny the plaintiff’s title, and can claim no protection under the rights of Fullerton. In order to determine the correctness of this conclusion, it becomes necessary to inquire, what effect should be given, to the notice from Fullerton to the defendant soon after the latter took possession, and the demand which Fullerton then made, to have the rent, or moiety of the produce, rendered to him, and not to the plaintiff. According to the view expressed by Lord Mansfield in Keech v. Hall above cited, and in Moss v. Gallimore, Doug. 279, and by the judges in Pope v. Briggs, 9 B. & C. 245, the mortgagor, in receiving rents from his tenant, whether the tenancy was created before or after the mortgage, should be considered as acting by the implied assent and permission of the mortgagee, and that his authority must therefore cease, whenever the mortgagee chooses to interfere by giving the tenant notice of his mortgage, and requiring payment to be made to himself. But this has since been controverted,, in reference to a tenancy created subsequently to the mortgage, on the’ ground that the mortgagor has no right, without the concurrence 'or assent of the mortgagee, to grant such alease ; — and as the lease creates no privity or contract with the mortgagee, that he cannot, by a mere notice and requisition, impose upon the tenant the obligations of a contract; — that he must either cause an actual eviction of the tenant, or become his landlord by a new contract, express, or implied, (which will generally operate as a constructive eviction,) in order to extinguish his liabilities to the mortgagor. Partington
Hence it becomes an important question, in a case like the pres* eut, where no actual eviction has taken place, what shall amount to a constructive eviction and new tenancy under the mortgagee. In most of the cases bearing upon this question, where the new contract was not shown by a lease, or other direct and express evidence, a most material fact has appeared, which this does not disclose, viz, an actual payment of rent to the mortgagee. But the conduct of the parties may sufficiently manifest the existence of the contract, without the aid of that fact. It was accordingly decided in Brown v. Storey, 1 M. & G. 117, where the mortgagee had given notice to the tenant and required the rent to be paid to him, and the tenant had continued in possession, not objecting to, or repudiating, the demand, that his consent and acquiescence had been properly found by the jury. And in Babcock v. Kennedy, 1 Vt. 462, this court held, that the demand of the mortgagee, unless repudiated by the tenant, gave the former a right to the future rents, and that the tenant was no longer liable for the same to the mortgagor. See also Swift v. Dean et al., 11 Vt. 323" court="Vt." date_filed="1839-02-15" href="https://app.midpage.ai/document/swift-v-dean-6572191?utm_source=webapp" opinion_id="6572191">11 Vt. 323. We think these authorities quite sufficient to determine the question in favor of the defendant.
It is obvious, that the plaintiff can gain nothing hy disavowing the character of mortgagor during the period in question, since he cannot claim to have become tenant from year to year. Though he should be deemed a tenant for years until April 1, 1840, it was as mortgagor that he received that estate, and Fullerton had a right to treat him as such at the end of his term. He should therefore be regarded in the light of a mortgagor, remaining in possession without any binding assent of the mortgagee, or else in that of a mere wrong-doer and trespasser. If regarded in the former view, the respective rights of these parties, as well as those of Fullerton, have already been considered; — and if in the latter, it is manifest, that his rights could not be thereby enlarged, nor those of the defendant or Fullerton diminished.
Judgment of county court affirmed.