recited, and the mortgagor after assignment, brought an action on the covenant for rent, it was held that the covenants were in gross, and that it might be well averred in the declaration that the plaintiff had no reversion at the time of the demise, and that a plea "that the reversion was in the plaintiffs at the time of the demise, and that before breach the plaintiffs had assigned it to a third person," was bad; as whatever might be the law otherwise, there was no estoppel in the present case, by reason of the disclosure of the facts on the face of the lease (7).

Whether indeed, in ordinary cases, when there is nothing on the face of the lease to prevent the estoppel, the assignee of a lessor who had only an equity of redemption, or had no interest in the premises demised, can maintain covenant or distrain against the lessee, or whether the estoppel ceases as between them, is a point on which the cases are not agreed. In the case of Gouldsworth v. Knights (m), the Court of Exchequer held that the assignee had a good title by estoppel against the tenant, and might distrain for the rent, though the case was decided on a different point. But this opinion of the Court is not easily reconcileable with the doctrine laid down in other cases (n). It seems, however, to be settled, that if the reversion by estoppel in the lessor is afterwards fed by a conveyance of the legal estate, the lease thereupon becomes a legal lease, and an assignee of the lessor is an assignee of the reversion on the lease within the statute of 32 Hen. 8 (0). Although this doctrine seems to be in direct opposition to the earlier case of Whitton v. Peacock, where, on the like principle as that on which the Court of King's Bench decided the first point in Webb v. Russell against the plaintiff, viz., the alteration of the estate in reversion, the Court of Common Pleas decided, that if a lessor having only title by estoppel makes a demise of copyholds, and subsequently takes a surrender of the legal estate, and is admitted, his assignee of the reversion cannot sue the lessee on the covenants in the lease (p).

By a late act it is provided, that when the reversion expectant on a lease made either before or after the passing of the act, of any tenements or hereditaments of any tenure, shall, after the 1st of October, 1845, be surrendered or merged, the estate which shall for the time being confer as against the tenant under the same lease the next vested right to the same tenements or hereditaments, shall, to the extent of preserving such incidents to and obligations on the same reversion, as but for the surrender or merger thereof would have subsisted, be deemed the reversion expectant on the same lease (q).

This statute seems to be intended to meet the first point in the case of Webb v. Russell, and not to apply to cases of estoppel, or at all events it affords no solution of the question raised by the case of Gouldsworth v. Knights.

If a mortgagee after granting a lease convey away his estate by way of mortgage, it will be a good defence for the tenant in an action of ejectment against him by the lessor to shew the fact of such conveyance, because although a tenant cannot deny his landlord's title, yet he may shew it has determined since the granting of the lease (r).

So in an action of ejectment brought by the mortgagor or mortgagee against their tenant, the tenant may shew a prior mortgage, in consequence of which his lessor (the mortgagor or mortgagee) had only a defeasible title, and that such lessor has since been treated by the first mortgagee as a trespasser, of which notice by the first mortgagee to the tenant to pay rent to him may amount to evidence (s).

A right of entry in a lease cannot be reserved to a stranger, and, therefore, if it appears on the face of the lease that the legal estate is in the mortgagee or a trustee for him, and the right of entry is reserved to the mortgagor, it will be void (t).

The acknowledgment by the mortgagor of the mortgage debt being due, contained in a different deed, will not raise an implied covenant to pay, where the acknowledgment appears to have been made solely for a collateral purpose, though, as a general rule, such a covenant will be implied from an unequivocal acknowledgment in a deed of such a liability (u).

(r) Marriott v. Edwards and Others, 5 B. & Ad. 1065.

(s) Doe v. Barton, 11 Ad. & Ell. 307, et vide the judgment in the cases of Gouldsworth v. Knights, and in The Mayor and Burgesses of Poole v. Whitt, supra; Pope . Biggs, 9 B. & C. 245, and Waddilove v. Barnett, 2 Bingh.

N. C. 538.

(t) Doe v. Lawrence, 4 Taunt. 23; et vide supra Pargeter v. Harris.

(u) Courtney v. Taylor, 6 M. & G. 851; but vide infra, as to the effect of such an acknowledgment on the Statute of Limitations.

CHAPTER IV.

OF THE PRIVILEGES ANNEXED TO THE ESTATE OF THE MORTGAGEE.

THE mortgagee by virtue of his mortgage becomes the legal owner of the land, and consequently entitled at law to immediate possession, or to the receipt of the rent if the land be in lease. And it seems that equity will in no case interfere to prevent the mortgagee from pursuing his legal remedy to obtain possession (a). It is a privilege annexed to his estate as before mentioned (b), that he may evict the mortgagor without notice or demand of possession (c), and retain the emblements, and if the lease be granted subsequently to the mortgage without his concurrence, he may also evict the lessee of the mortgagor without notice, and retain the emblements, and may have an action for mesne profits not actually paid over to the mortgagor (d). And this power of eviction remains the same, although there be a clause in the deed that the mortgagor shall be tenant at a certain rent, provided that there is the usual power of entry on default of payment of the mortgage money (e). But, although as a general rule the ejectment may be laid on a day antecedent to the determination of the will (f), yet if the mortgagee by his conduct recognises a party as being in lawful possession of the premises at a given time, it is not competent for him to say afterwards that he was at that time a trespasser (g).

And in the case of Evans v. Elliott, Lord Denman said, that he was by no means prepared to admit that a jury would not be warranted in inferring a recognition of the tenant's right to hold from the circumstance of the mortgagee's knowingly permitting the mortgagor to continue the apparent owner of the premises as before the mortgage, and to lease them out exactly as if his property in them continued (h). In the case of Pope v. Biggs (i), the Court of King's Bench decided, that the tenant in possession under a demise subsequent to the mortgage, was justified in paying the rent to the mortgagee, due at the time of the notice and demand made, on the ground that as the mortgagee might have evicted the tenant, and obtained the rents due in an action for mesne profits, the mortgagee must be entitled to receive them, without bringing an ejectment. And to an avowry of rent by the

mortgagor, the tenant may plead such payment made to the mortgagee, without denying the mortgagor's title as landlord (i); and it may perhaps be inferred that such payment may be given in evidence under a plea of rien in arrere (k); but such payment of rents due at the time of the notice must, in an action of assumpsit by the mortgagor, be specially pleaded, and cannot be given in evidence under an issue of non assumpsit (1). So if the rent has become due and is not paid to mortgagee or mortgagor, any binding agreement between them for payment of rent to the former, must be specially pleaded by the tenant to an avowry by the mortgagor, and a plea of rien in arrere is bad (m). But though the tenant will thus be allowed all payments to the mortgagee made under compulsion, or with the assent of the mortgagor, he cannot, in an action brought against him by the latter, plead what amounts to nil habuit in tenementis (n), though he may shew that the mortgagor's interest has determined by eviction from the mortgagee (o).

And it was held in the case last referred to, that as against the assign of the mortgagor, the tenant may shew that the assign could not have a derivative title from the mortgagor, and that he would not be concluded from so doing by payment of rent to the assign under a mistake of facts (p). On the question, however, of estoppel as against the assign, vide supra (q).

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A question (r) has been raised whether, if the tenant should refuse pay the rents due at the time of the notice, the mortgagee could recover them quà rents. The case of Pope v. Biggs could not decide that question, as it was an action brought by the assignees of the mortgagor against the tenant, to recover rents paid by the tenant to the mortgagee, and not an action brought by the mortgagee to recover the rents from the tenant. But from the reasoning of the Court it may be thought that the rents due at the time of the notice, on a demise subsequent to the mortgage, cannot be recovered by the mortgagee quà rents, and that if the tenant refuses to pay him, the mortgagee must evict the tenant, and bring his action for mesne profits, on the principle of there having been no privity of estate between the mortgagee and the tenant prior to the notice. And it has been since decided that such notice by the mortgagee is not of itself sufficient to make the lessee his tenant, so as to enable him to distrain or sue for the rent afterwards accruing due under the lease (8).

Nor is the tenancy under the mortgagor affected by an authority from the mortgagor to the mortgagee to receive the rents, though perhaps such a power may be irrevocable, and justify all payments made under it while the mortgage debt continues (t).

A new tenancy may, however, be created between the mortgagee

and tenant by payment and acceptance of rent, as rent (t), or even by the acquiescence of the tenant in the notice to pay the rent to the mortgagee (u), which will, it seems, be a tenancy from year to year upon the terms of the lease (v), although mere notice by the mortgagee to the tenant to pay the rents to him, without attornment or assent on the part of the tenant, is insufficient to create a new tenancy (w). But, it would seem, that a notice by the mortgagee to pay all future rents to him may be treated by the tenant, as against the mortgagor, as an eviction by title paramount, and it was accordingly held in the case of Waddilove v. Barnett (x), that under an issue of non-assumpsit the defendant (the tenant) could, as to the rents due after the notice, give such notice in evidence, though as to the rents due prior to such notice, the notice must be specially pleaded (y).

It is to be noticed, however, that it seems to be open to the tenant to treat the payments made to the mortgagee, in consequence of the notice, as payments made on the mortgagor's account, and to plead the same accordingly, without denying the mortgagor's title as landlord (z). If the demise is prior to the mortgage, or is made under a power in the mortgage deed, and therefore contemporaneous with it in point of effect (a), the notice of the mortgagee to the tenant in possession operates as an attornment at common law, having relation back to the time of the grant, and it follows that all the rents due from the tenant at the time of the notice, and not actually paid over to the mortgagor (b), belong of right to the mortgagee, who may distrain for them (c), or if the tenant holds from year to year, or under an agreement, may recover them in an action for use and occupation (d); and that too though the mortgagor has, after the mortgage, altered the property and raised the rent (e). But a mortgagee taking possession, or a receiver appointed on his behalf, is not entitled to the crops of the estate previously severed and consigned by the mortgagor, though not actually received by the consignee (ƒ). A receiver appointed in the mortgage deed by the mortgagor, with the consent of the mortgagee, (both parties having executed the deed), with power to receive the rents and eject tenants, is an agent of the mortgagee duly authorized to give notice under the 4 Geo. 2, c. 28, s. 1, though such mortgagor have only the equitable estate, and the trustees in whom the legal estate is vested are parties to mortgage deed (g). And even a receiver appointed by the Court of Chancery has been held to be within the act (h).

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In any legal proceeding against the tenant subsequent to the notice,

(1) Vide Rogers v. Humphrey, 4 Ad. & Ell. 313, per Lord Denman, Č. J. (u) Brown v. Storey, 1 M. & G. 117. (v) Doe v. Boulter, 6 Ad. & Ell. 675. Brown v. Storey, supra.

(w) Evans v. Elliott, supra; et vide 6 Ad. & Ell. 695.

(z) 2 Bingh. N. S. 538.

(y) Et vide Doe v. Barton, 11 Ad. & Ell. 315, and the judgment in Goulds. worth . Knights, 11 Mees. & W. 337, and Mayor and Burgesses of Poole v. Whitt, 15 M. & W.571.

(2) Johnson v. Jones, supra; though this case the rent was due before the