CHAPTER III.

OF THE RESTRICTIONS AND DISABILITIES ANNEXED TO THE ESTATE OF THE MORTGAGOR.

ALTHOUGH in equity the mortgagor remains the actual owner of the land until foreclosure, entitling him, while in possession, to the receipt of the rents and profits without account, yet equity regarding the land with all its produce as a security for the mortgage debt, will restrict the right of ownership within those bounds which may not operate to the detriment or injury of the mortgagee.

On this principle equity will interfere to prevent waste by the mortgagor, and for that purpose grant an injunction on bill filed by the mortgagee (a). But the mortgagee is not, as a matter of course, entitled to an injunction to prevent the felling of timber by the mortgagor; the Court must first be satisfied that the security is insufficient (b).

Equity also will in no instance, it seems, interpose its authority to obstruct the mortgagee from evicting the mortgagor from the possession, but for such purpose will consider the latter a mere tenant at will (c).

The mortgagor is liable to eviction by the mortgagee without any notice whatever (d), unless protected by the agreement for quiet possession until default, &c. (e), and he has no right to emblements, for all the produce of the land forms part of the security (f).

His possession, generally speaking, being only that of tenant at will or at sufferance, he cannot make a lease to bind the mortgagee; and if he make such a lease, the mortgagee may proceed to eject the lessee without notice (g). If the land, however, at the time of the mortgage, be in the occupation of a tenant from year to year, he will be entitled to the usual notice to quit (h).

On the eviction of the lessee two questions arise: First, whether he is entitled to emblements, and, secondly, whether he is liable to an action for mesne profits.

First, as to emblements: the point was started in the case of Keech v. Hall, but did not call for a decision, the Court only remarking that

the right to emblements, would be no bar to the mortgagee's recovering in ejectment; it would only give the lessee a right of ingress and egress to take the crops. It may, however, be considered, that both on legal and equitable principles the lessee will not be entitled to emblements, for at law he is evicted by title paramount, and the law makes a distinction as to the right to emblements, between tenants who have particular estates that are uncertain, defeasible by the act of the parties to the original contract, or by the act of God, and those who have particular estates defeasible by a right paramount, for in the latter case (i) he that hath the right paramount shall have the emblements, for although quoad actionem the law will not by a fiction make the lessee who comes in by title liable to punishment as a trespasser, yet quoad proprietatem, the regress of the disseisee revests the property as well for the emblements as for the freehold itself, and equally against the feoffee or lessee of the disseisor, as against the disseisor himself. For the rule and reason of the law is, that after the regress of the disseisee, the law adjudges that the freehold has continued in him: which rule and reason extends as well to the emblements as to the freehold, and although the act of the disseisor may alter a man's action, yet his act cannot take away his action, property, or right (j).

Nor if the tenancy determines by the act of the lessee, will he be entitled to emblements (k), and, therefore, it was decided that if a lease be granted subject to a condition of re-entry on bankruptcy, insolvency, or by the lessee incurring a debt on which judgment shall be entered up, and the lessor re-enter for condition broken, the latter will have a right to the emblements (1).

As to mesne profits, the legal remedy is by an action of trespass vi et armis, and in this respect, a distinction is taken between a disseisor and one who comes in under him by title (m), for if a man be disseised, and the disseisor, during the disseisin, cuts down the trees, or grass, or the corn growing upon the land, and afterwards the disseisee re-enters, the disseisee shall have an action of trespass against him vi et armis for the trees, grass, corn, &c., for after the regress, the law, as to the disseisor and his servants, supposes the freehold always continued in the disseisee. But if the disseisor makes a feoffment in fee, gift in tail, lease for life or years, and afterwards the disseisee re-enters, he shall not have trespass vi et armis against those who come in by title, for this fiction of the law, that the freehold continued always in the disseisee, shall not have relation to make him who comes in by a title a wrong doer vi et armis because in fictione juris semper æquitas existit. But in such case, the disseisee shall recover all the mesne profits against the disseisor. Now it might be thought that the lessee who came in under the mortgagor in possession was within the rule, and consequently not liable to an action for mesne profits; though according to the case of Pope v. Biggs (n), the lessee is liable to such an action on ejectment by the mortgagee for rents due at the time

(i) Co. Litt. 55, b.

(j) Lifford's case, 11 Co. 51.

(k) Bulwer v. Bulwer, 2 B. & A. 470. (1) Davis v. Eyton, 7 Bingh. 154.

(m) Liford's case, ubi supra. (n) 9 Barn. & Cress. 245; infra, Ch. 4.

when notice of the mortgage was given, and not then paid over to the mortgagor.

The mortgagor not being able by himself to make a valid lease, it follows that, in order to enforce specific performance of an agreement for a lease, he must obtain a prior reconveyance from the mortgagee, or procure the latter to concur in the lease (o).

In Costigan v. Hastler (p), it seems to have been considered that the tenant could not under an agreement for a lease, compel the mortgagor to redeem for the purpose of granting a valid lease, but the circumstances of that case were very special; the rent reserved was a rack rent; and, pending the suit, performance of the contract became im possible, the premises being sold by the mortgagee under an order of Court. The circumstances in that case were, that John Parker, being seised in fee of the equity of redemption of some lands in mortgage, entered into an agreement to grant a lease to one Alley in trust for Hastler. The latter got into possession, and advertised the lands to be let. The plaintiffs offered a rent of 2217, and were declared the tenants. A lease for three lives was prepared by Hastler, from Alley to the plaintiffs, and executed by the latter, but not by Alley, and was retained by Hastler, under pretence of procuring Alley's signature. The plaintiff entered into possession of part of the premises. Hastler subsequently distrained for rent. To prevent a sale of the distress, the plaintiffs gave three notes of hand to a trustee for Hastler, subject to a settlement of accounts; on which notes, but without a settlement of accounts, actions were brought by Hastler. The original bill was filed by the plaintiffs for relief, praying that the notes of hand might be cancelled, and Alley be obliged to execute the lease. After the filing of the bill, the mortgagee obtained a decree for sale, and the plaintiffs were put out of possession; on which they amended their bill, and prayed that they might be restored to the possession, or Hastler should be ordered to pay them the value of their interest in the lands, which had considerably risen in value. The decree was, that the contract for the lease should be set aside, and the plaintiffs should account for the rent due on such part of the lands of which they had possession during the period of their occupation, and the Master should set a fair rent on those lands, and ascertain the amount due at the time of the distress; and it was ordered that the proceedings on the notes of hand should be stayed, and the actions discontinued, and the notes brought into Court. The mortgagee, as before stated, may annul the lease, or he may confirm the tenancy, or rather establish a new tenancy upon the same terms (q); and any act of the mortgagee, demonstrating an approbation of the demise, such as the receipt of or distress for rent, or the like, will be evidence of a tenancy. If the mortgagee encourages the lessee to lay out money on the premises, he will not afterwards be permitted to disavow the tenancy (r); and even if he proceeds to evict the lessee, yet the lease, being a valid demise of the equity of redemption, will entitle the lessee to redeem the mortgage (s),

(0) Vide Costigan v. Hastler, 2 Sch. & Lef. 160.

(p) Vide 2 Sch. & Lef. 160.

(q) Keech v. Hall, supra; et vide infra.
(r) Vide Dougl. 22.
(8) Vide infra.

and will at all events be binding on the mortgagor and all persons claiming under him.

The mortgagor cannot dispute his mortgagee's title against his own solemn act (t), nor could he, during the existence of fines and recoveries, have barred the mortgagee's title by such mode of assurance (u). Nor can a purchaser of the equity of redemption from the mortgagor (v), or a party who, though a lessee, in fact defends the action for the benefit of the mortgagor (w), set up a legal title in a third person paramount to that of the mortgagor (x), or set up a prior legal mortgage from the mortgagor to a third person (y), in order to defend his own possession. But the rule does not apply when a subsequent purchaser or mortgagee for valuable consideration, without notice of the prior mortgage, obtains a valid legal conveyance from the mortgagor, (who has in the meantime become clothed with the legal estate), or gets in an outstanding legal estate (z); though it would seem, that such party might be bound by estoppel, if there was positive recital of the seisin of the mortgagor contained in the mortgage deed (a). And of course a lessee claiming under the mortgagor subsequently to the mortgage may, in answer to an action of ejectment by the mortgagee, shew eviction by title paramount; or if the lease be prior in date to the mortgage, it would seem that he may either make the same defence of eviction by title paramount, or without shewing any eviction, plead that by reason of the paramount title the mortgagor could not transmit any legal title to the mortgagee (b); and notice given by the person having such paramount title, to the tenant, to pay the rent to him is, it seems, evidence to go to a jury of the fact of eviction (c). And if prior to the statute of the 3 & 4 Wm. 4, c. 74, abolishing fines and recoveries, the mortgagor, being tenant in tail, had mortgaged his estate, and afterwards levied a fine, or suffered a recovery to other uses, it would, nevertheless, have let in the mortgage (d); and since the passing of the statute, the mortgage of tenant in tail will be also let in by his deed duly inrolled in pursuance of the statute, except as against a bona fide purchaser without express notice (e).

If a mortgagor parts with his whole interest in the land, and (having consequently an equity of redemption only) joins with his mortgagee in a lease of the premises, and the lessee enters into covenants with the mortgagor and his assigns, these covenants, being collateral to the land, will neither descend at common law to the heir of the mortgagor, nor pass to an assignee of the mortgagee under the statute 32 Hen. 8 (ƒ),

(t) Cowp. 601. Doe v. Vickers, 4 Ad. & Ell. 782.

(u) 1 Vent. 82; 1 Lev. 272; Hard. 402; Noy, 25. Fermor's case, 3 Co. 77 ; Sid. 460; Carth. 101; 2 Ves. 482. Hall v. Surtees, 5 B. & Ald. 687.

(v) Doe v. Stone, 3 C. B. Rep. 176; 15 L. J., C. P. 234, N. S.

(w) Doe v. Clifton, 4 Ad. & Ell. 813.
(r) Doe v. Stone, supra.
(y) Doe v. Clifton, supra.

(2) Right v. Bucknell, 2 B. & Ad. 278. Goodtitle v. Morgan, 1 T. R. 755. (a) Right v. Bucknell, supra.

Bens

ley v. Burdon, 2 S. & S. 519.

(b) Doe v. Barton, 11 Ad. & Ell. 307. This latter ground although taken in the judgment alone, as the ground of defence, for the particular defendant (Barton) is questionable, since the case of Goldsworth v. Knight, 11 Mees. & W. 337; 12 L. J., Exch. 282, N. S.

(c) Doe v. Barton, supra.
(d) Vide supra.

(e) See 3 & 4 Wm. 4, c. 74, s. 38; et
vide supra, p. 189.
(f) Cap. 34.

but will be covenants in gross, on which actions must be brought in the name of the mortgagor or his personal representatives (h). In the case of Webb v. Russell, Stokes being possessed of a term of ninety-nine years, assigned to Webb by way of mortgage. Stokes and Webb joined in a demise to Russell for eleven years, at a rent of 300Z., payable to Stokes or his assigns; and Russell covenanted with Stokes and his assigns, to pay the rent and keep the premises in repair. Stokes afterwards purchased the reversion in fee, which was conveyed to Thackery, in trust for Webb, subject to redemption by Stokes. Webb died, and appointed the plaintiff his executrix; and afterwards Thackeray conveyed the reversion to the plaintiff; so that, at law, both the term of ninety-nine years and the inheritance became vested in the plaintiff; and consequently, the former merged in the latter. The plaintiff brought her action for breach of covenant in non-payment of rent and want of repair. The action was defended on two grounds, first, that the term of ninety-nine years being extinguished, the assignee of the reversion on the term of eleven years was not seised of the same estate in respect of which the covenants were made, and secondly, that the covenants entered into with the mortgagor, who had no estate in the land, were collateral and in gross, there being no privity of estate between the parties. Both objections were allowed by the Court to be fatal to the action. Lord Kenyon, in delivering judgment, stated, that, at common law, covenants which run with the land pass to the person to whom the lands descend; the statute gave the grantee of the reversion the like advantages against the lessee as the grantor had, and gave the lessee the like remedies against the grantee, as he might have had against the grantor. Therefore the inquiry in this case was whether this action could have been maintained by the heir of Stokes, which was not the case, because there was no privity of estate which was necessary to make the covenants run with the land; and he fully admitted, that if they had run with the land, and had been entered into with Webb, yet the assignee could not have maintained the action, for the reversion of the term to which the covenants were incident was extinguished in the reversion in fee.

After this decision, an action was brought against Russell for breach of covenants in the name of Stokes the mortgagor, and the Court was clear the action would lie (¿).

On a demise by the mortgagee with the concurrence of the mortgagor, a covenant entered into by the tenant with them both, to pay rent to the mortgagee until payment of the mortgage, and then to the mortgagor, is a covenant running with the land until the mortgage is discharged, and then becomes a covenant in gross; and during the continuance of the mortgage, the action is properly brought by the mortgagee alone; and the payment of the mortgage money is a condition subsequent operating in defeasance of the covenant with the mortgagee, and must be pleaded (k).

And in like manner, where a lease was made by the mortgagor to which the mortgagee was not a party, but in which the mortgage was

(h) Webb v. Russell, 3 T. R. 393. (i) Stokes v. Russell, 3 T. R. 678.

(k) Whitaker v. Harrold, 17 L. Ja Q. B. 343, N. S.