V. Dickenson v. Jackson ex dem. Caldwell

6 Cow. 147 | N.Y. Sup. Ct. | 1826

Curia, per

Savage, Ch. Justice.

The rule is well established, that the demise in the declaration must be laid after the lessor’s title and right of entry accrue. (6 John. 273.) This rule'isnot disputed; but the question is, when did the lessor’s right of entry accrue ih the ease before us ? This is the only real question in the cause ; as the defendant, having taken an absolute conveyance, not acknowledging the mortgage, was not entitled to notice to quit; the sale itself being an act of disloyalty. (18 John. 488.)

“ It has repeatedly been decided in this court, that, as between the mortgagor and mortgagee, the former is to bé regarded as a tenant at will by implication, and is entitled to notice (by which is meant six months notice) to quit.” (18 John. 488.) The mortgagor is entitled to the possession ; and, so far from being treated as a trespasser before notice to quit, this court has held that he may maintain trespass against the mortgagee. (11 John. 538.) And iri Jackson v. Bronson, (19 John. 326,) it was decided that the mortgagor might maintain ejectment against the grantee of the mortgagee, who was not also assignee of the debt.

In Goodtitle v. Herbert, (4 T. R. 680,) it was decided that a tenant at wilkwas not a trespasser. In that case, the demise was laid the 1st of October, and the demand ofpos-session, which was tantamount to notice to quit, was made on the 5th of the same month. The demand in that casé terminated the tenancy, which, not being until after the day of the demise in the declaration, the defendant had judgment.

The mortgagor, in this case, was quasi tenant at will; and had he continued in possession, that tenancy must' have been terminated by a notice to quit. And until such termination, the mortgagee had no right of entry. The mortgagor, however, chose to terminate the tenancy on the 5th of July, 1819, by giving a conveyance in fee absolutely. The first default happened on the 8th of September, 1819. Then the mortgagee’s right of entry accrued; the tenancy having been previously terminated. But the demise was laid long anterior, to wit, at the date of the mortgage, before the lessor had any right of entry; the mortgage then being a mere chattel, a security for money. To give the mortgagee a right of entry, two things are necessary ; 1. default of payment, in whole or in part; 2. a termination of the tenancy : neither of which had happened at the time of the demise, as laid in the declaration.

The plaintiff belotv had no right to recover. The court below, therefore, erfqd.. The judgment must be reversed ; and a venire de noctrawarded from Warren common pleas.

Judgment reversed.