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in England, while the mortgagor is in possession, or in receipt of the rents and profits, he is treated as a freeholder, and as such is entitled to vote in the election of members of Parliament,' and is entitled to retain possession until the mortgagee enters or brings ejectment, and is not liable to the mortgagee for the rents or profits of the premises.3 The right of the mortgagor to retain possession of the premises, and consequently his right to lease the same after mortgage, is generally upheld, but must depend largely upon the language of the mortgage, and upon the statutes relating thereto in the several States, although the instances are very rare where a mortgagee takes possession before condition broken, or even before foreclosure and final decree. But, without stopping to discuss the relation of the parties to the estate further, it may be said that the tenant can acquire no greater rights than the mortgagor himself had, but may defend his title under the lease to the same extent that the mortgagor could, and may even redeem the estate to protect his term.1
Carolina, Mississippi, Missouri, and Massachusetts, the common-law rule, with some limitations, prevails. It is a mere incident of the debt, and falls with it. Morris v. Bacon, 123 Mass. 58; Benton v. Bailey, 50 Vt. 137.
In New York, by statute, an action of ejectment by a mortgagee is abolished, and, in the ausence of any contract for possession, the mortgagor is entitled thereto, and to the rents and profits of the estate, unless, upon a proper showing as to the inadequacy of the security, and the irresponsibility of the mortgagor, the courts will appoint a receiver of the rents. Astor v. Turner, 11 Paige (N. Y.) Ch. 436; Sea Ins. Co. v. Stebbins, 8 id. 565. But after sale, a tenant who went in under the mortgagor, and was made a party to the proceedings, is bound to attorn to the purchaser. Lovett v. Church, 9 How. Pr. (N. Y.) 226.
1 3 & 4 Will. IV. c. 45, § 23.
? Rex v. Edington, 1 East, 293; Keech v. Hall, 1 Doug. 21; Bree v. Holbech, 2 id. 655; Reading of Judge Trowbridge, 8 Mass. 551; Clark v. Rayburn, 1 Kan. 281.
Renard v. Brown, 7 Neb. 449. The mortgagor's right to lease and take the rents continues until it is divested by some positive interference of the mortgagee. Dunn v. Tillery, 79 N. C. 497; Chadbourn v. Henderson, 58 Tenn. 460; Gibson v. Farley, 16 Mass. 280.
Rogers v. Moore, 11 Conn. 553. As to tenant's right to redeem, see Averill
v. Taylor, 8 N. Y. 44. In Walker v.. King, 44 Vt. 601, it was held that a mortgagee who has never taken possession under his mortgage, but has permitted the assignee of the mortgagor to remain in possession, has no greater claim against him for rents and profits than he would have against the mortgagor; and it is well settled that he has no claim upon the mortgagor therefor, either at law or in equity. Ex parte Wilson, 2 V. & B. 252; Hill v. Bexley, 20 Beav. 127; Walmsley v. Milen, 7 C. B. N. s. 115; Moss v. Gallimore, 1 Doug. 283; Trent v. Hunt, 9 Exch. 14; Joly v. Arbuthnot, 28 L. J. Ch. 547; Cole on Ejectment, 38, 473. In Georgia, the mortgagor is entitled to all the rents and profits of the land, until he is sold out and dispossessed by foreclosure proceedings. Vason v. Ball, 56 Ga. 268. In Kentucky, unless the rents and profits are specially pledged, the same rule prevails, and the mortgagee cannot claim them as a legal incident of the estate. A court of equity may, after the debt becomes due, if the property is inadequate to secure the debt, in an action to foreclose the mortgage, appoint a receiver of the rents. But if there is no deficiency, they go to the mortgagor. Douglass v. Cline, 12 Bush (Ky.), 608. In Mississippi, the mortgagor retains the legal title and right of possession until condition broken, and the mortgagee cannot intefere therewith, nor can
The mortgagor is now generally treated, at least in equity, as retaining both the legal and the equitable title, and the mortgagee as only holding under his mortgage a conditional title or lien upon the land for the payment of the debt it is given to secure.1 But whatever may
the mortgagee take the rents and profits unless so agreed. Myers v. Estell, 48 Miss. 373; Black v. Payne, 52 Miss. 271. In North Carolina, the mortgagor is treated as having an equitable freehold. State v. Ragland, 75 N. C. 12. In Tennessee, the mortgage to the extent of the mortgage debt is pro tanto a sale, giving the mortgagee all the rights of a bona fide purchaser. 2 Tenn., Ch. 531. So in Iowa. Hewitt v. Rankin, 41 Iowa, 35. In Vermont, after condition broken, he may enter and take possession without previous notice, if he can do so peacefully. Fuller v. Eddy, 49 Vt. 11. So in Maine, he may enter and harvest the crops, unless the mortgagor is occupying by agreement, as tenant. Gilman v. Wills, 66 Me. 271. In Pennsylvania, the mortgagee is treated as having the title and right of possession to hold until payment, and may enter and hold the lands and receive the rents and profits until the mortgage debt is paid. Tryon v. Musson, 77 Penn. St. 250. These conflicting doctrines are, however, only applicable to ordinary mortgages, and the parties may, by special provision, entirely change the respective rights of the parties under the mortgage.
1 Carpenter v. Bowen, 42 Miss. 28; Trimm v. Marsh, 54 N. Y. 599; Fletcher v. Holmes, 32 Ind. 497; Buchanan v. Munroe, 22 Tex. 537; Williams v. Beard, 1 S. C. 309; Johnston v. Houston, 47 Mo. 227; White v. Rittemeyer, 30 Iowa, 268; Fletcher v. Holmes, 32 Ind. 497; Elfe v. Cole, 26 Ga. 197; Mack v. Witzler, 39 Cal. 247; Priest v. Wheelock, 58 Ill. 114. Although in form a conveyance in fee upon condition, yet, in effect, even after condition broken, it is a mere security for a debt, and the title reverts without a reconveyance, whenever the debt is paid, Pease v. Pilot Knob Iron Co., 49 Mo. 124; and, before foreclosure, is not subject to levy and sale, Buckley v. Daley, 45 Miss. 338. And until condition broken he is entitled to possession, unless otherwise provided in the mortgage, and is in by
right and by virtue of his title, and not as a tenant at sufferance. Hooper v. Wilson, 12 Vt. 695; Crippin v. Morrison, 13 Mich. 23; Kidd v. Temple, 22 Cal. 255. And if a mortgagee takes a lease of the mortgagor of the same lands, he will be treated as holding under the lease until he has made his election to hold under the mortgage. Wood v. Felton, 9 Pick. (Mass.) 171. And after condition broken he may hold under his mortgage without first surrendering possession under the lease. Shields v. Lozear, 34 N. J. L. 496. The mortgagor's interest is an estate of inheritance in no wise affected by the mortgage before entry and foreclosure. White v. Rittemeyer, 30 Iowa, 268. See Miner v. Beekman, 11 Abb. Pr. N. s. (N. Y.) 147; Norcross v. Norcross, 105 Mass. 265; O'Dougherty v. Felt, 65 Barb. (N. Y.) 220. And even after the debt is due he is not entitled to the rents and profits, unless the security is insufficient. Myers v. Estell, 48 Miss. 373. As to the nature of mortgagor's estate, see Kline v. McGuerkin, 24 N. J. Eq. 411; Hill v. Hewitt, 35 Iowa, 563; Trimm v. Marsh, 54 N. Y. 599; Annapolis, &c. R. R. Co. v. Gantt, 35 Md. 115. The mortgage is but a security, and the freehold still remains in the mortgagor. Jackson v. Willard, 4 Johns. (N. Y.) 41. He is seised and is the legal owner. Orr v. Hadley, 36 N. H. 575; Hitchcock v. Harrington, 6 Johns. (N. Y.) 290; Runyan v. Mensereau, 11 id. 534. The mortgagee, before condition broken at least, has no estate in the land distinct from the debt.
Aymar v. Bill, 5 Johns. Ch. 570. When out of possession he cannot be treated as the proprietor of the estate. Norwich v. Hubbard, 22 Conn. 587. It is only a security, and the mortgagor has the same rights to the estate that he ever had, except against the mortgagor. Wilkins v. French, 20 Me. 111; Orr v. Hadley, 36 N. H. 575. And as against him, until he has legally entered for condition broken, Kennett v. Plummer, 28 Mo. 142; under foreclosure proceedings, or as a judgment
be the true relation of the parties to the property, it is held that, whichever may be in possession, he holds the possession for the other, until condition broken, and neither can set up an adverse claim against the other until that event has transpired.1 The rule is that the mortgagor and his vendee hold in subordination to the title of the mortgagee, not adversely to him; and the statute of limitations does not run, even after the law-day is past, as in favor of the mortgagor or his vendee, without some overt act, throwing off allegiance; for it cannot be known otherwise that the mortgagor or his vendee is not quietly enjoying the possession of the equity of redemption, at all times acknowledging the rights of the mortgagee; and if, in an action
of a court of law, or by the consent of the mortgagor, Hooper v. Wilson, 12 Vt. 695; Crippen v. Morrison, 13 Mich. 23; Pierce v. Brown, 24 Vt. 195; Hill v. Robertson, 24 Miss. 368; Pratt v. Skolfield, 45 Me. 386. LORD MANSFIELD, in The King v. St. Michael's, 2 Doug. 631, very clearly defines the relations of the mortgagor and mortgagee to the lands. He says: "A mortgagor in possession gains a settlement because the mortgagee, notwithstanding the form, has but a chattel, and the mortgage is only security. It is an affront to common sense to say that the mortgagor is not the real owner." In an earlier case, Martin v. Weston, 2 Burr. 978, he thus defines the interest covered by a mortgage: "A mortgage is a charge upon the land. And whatever would give the money will carry the estate in the land along with it, to any purpose. The estate in the land is the same thing as the money due upon it. It will be liable to debts; it will go to the executors; it will pass by will not made and executed with the solemnities required by the statute of frauds. The assignment of the debt or forgiving it will draw the land after it as a consequence. Nay, it would do it, though the debt was forgiven only by parol." In Eaton v. Jaques, 2 Doug. 455, a term for years was assigned by way of mortgage with a clause of redemption, and it was held by the court that the lessor could not sue the mortgagee as assignee of all the estate, right, title, interest, &c., of the mortgagor even after the mortgage had been forfeited, unless the mortgagee had taken actual possession. See also, to same effect, Walker v. Reeves, 2 Doug. 461, note 1. In The King v. Eddington, 1 East, 288, it was held that
the object of a mortgage is merely to secure a debt, and that the legal estate still remains in the mortgagor; and it was held also that the husband of a woman who had an estate in a term for ninety-nine years, but which had been by her and her first husband mortgaged to secure a loan, gained a settlement by a residence upon the estate for forty days, under a statute which enabled a person owning a freehold estate in a parish, who resided upon it for the period of forty days to acquire a settlement therein; and the court adopted the rule as stated by LORD MANSFIELD in The King v. St. Michael's, supra. See opinion of GROSE, J. The legal estate of the mortgagor is not divested by condition broken or entry therefor by the mortgagee, but he retains such an estate therein that it may be levied upon and sold under execution. Trimm v. Marsh, 54 N. Y. 599; Gorham v. Arnold, 22 Mich. 247. But contra, see Buckley v. Daly, 45 Miss. 338. In Kennett v. Plummer, 58 Mo. 142, it was held that, until after condition broken and entry by the mortgagee, the mortgagor continues owner, and may lease the estate, and in every respect deal with it as owner. Kircher v. Hawley, 16 Johns. (N. Y.) 289; Partington v. Woodcock, 5 N. & M. 672; Watts v. Coffin, 11 Johns. (N. Y.) 495; Rogers v. Humphreys, 4 Ad. & El. 299; Partington v. Woodcock, 5 N. & M. 672; Peters v. Elkins, 14 Ohio, 344; McKircher v. Hawley, 16 Johns. (N. Y.) 289; Rogers v. Moore, 11 Conn. 553.
1 Gould v. Newman, 6 Mass. 239; Sweetser v. Lowell, 33 Me. 446; Colton v. Smith, 11 Pick. (Mass.) 311; McGuire v. Shelby, 20 Ala. 456.
by the second mortgagee against the mortgagor, he recover the property, and purchase subsequently at his own sale, the first mortgagee is not barred, by limitation, until six years from the sale, of his right of foreclosure. "One is much at a loss," says PATTERSON, J.,2" as to the proper terms in which to describe the relation of mortgagor in possession to the mortgagee. In one case such mortgagor is held to be tenant to the mortgagee; sometimes he is said to be the bailiff of the mortgagee; and in a late case LORD TENTERDEN said that his situation was of a peculiar character. But it is clear that his possession is, at all events, not adverse to the title of the mortgagee." 4 It has sometimes been thought that the mortgagee occupies the position of a trustee to the mortgagor; but as there is no trust expressed in the mortgage, if he can be said to be a trustee at all, it is only by implication, and in subordination to the main purposes of the contract. His right is qualified and limited, yet he has a distinct and beneficial interest in the estate which may in a certain contingency become absolute and perpetual, and may be enforced against the mortgagor. It is a general rule that a trustee is not allowed to deprive his cestui que trust of the possession; but a court of equity never interferes to prevent the mortgagee from assuming the possession. In this respect, it will be perIceived that there is a marked difference in the contract between mortgagor and mortgagee, and trustee and cestui que trust. A trustee is estopped in equity from dispossessing his cestui que trust, because such dispossession would be a breach of trust. A mortgagee cannot be estopped, because in him it is no breach of trust, but in conformity to his contract. On the same principle a mortgagee is not prevented, but assisted in equity, when he has recourse to a proceeding which is not only to obtain the possession, but the absolute title to the estate, by foreclosure. There is no resemblance, in this respect, to the character of a trustee, but to a character directly opposite; and it is in this opposite character that the mortgagee accounts for the rents and profits when in possession, and when he is not, receives the interest of his mortgage debt. The ground, therefore, on which a mortgagee is in any case and for any purpose considered to have a character resembling that of a trustee is the partial and limited right, which, in equity, he is allowed to have in the whole estate, legal and equitable. And hence, although as a general rule the statute will not apply to a direct trust, yet a mortgagee is allowed to set up lapse of time as a bar to the equity of redemption. After the mortgage debt has been paid, if the mortgagee is in possession from that time, he holds the premises as trustee for the mortgagor, and he cannot set up his possession as
1 Boyd v. Beck, 29 Ark. 703; Jamison v. Perry, 38 Iowa, 14; Rockwell v. Servant, 63 Ill. 424; Parker v. Banks, 79 N. C. 480; Medley v. Elliott, 62 Ill. 532; Martin v. Jackson, 27 Penn. St. 504.
2 Jones v. Williams, 5 Ad. & El. 291.
adverse until he has done some act which shows that his possession and claim is adverse.1
SEC. 222. Distinction between Note or Bond, and the Mortgage given to secure its Payment. Periods of Limitation as to, in the several States. -The fact that a note or other security is recited in the mortgage which is given to secure its payment does not raise the note or other debt from the character of a simple contract to a specialty, or in anywise affect or change the operation of the statute of limitations thereon; nor, on the other hand, generally, does the circumstance that the statute has run upon the note or debt affect the mortgage given to secure it, or destroy the lien which it imposes upon the land for the payment of such debt. In some of the States, as California, Nevada, Nebraska, Illinois, Iowa, Texas," and Kansas, 4 the debt is regarded as the principal, and the mortgage as a mere incident, and, consequently, when the debt is barred, the remedy upon the mortgage is also barred. This peculiar doctrine, however, is due to the statutes in those States, rather than to the introduction of a new principle by the courts. In most of the States the statute runs upon the note or debt, which is merely a simple contract, within a shorter period than it does upon the mortgage, which is a specialty; but while the debt itself, because of the statute bar, ceases to be enforceable as a personal claim, yet the lien created by the mortgage, as well as the right to enforce it, still remains, and, if enforced before it is also barred, continues as a valid security for the debt and for the interest accruing thereon even after the debt itself is barred by the statute, — the rule being, that, where the security for a debt is a lien on property, real or personal, the lien is not impaired in consequence of the running of the statute of limitations upon the debt. The debt is not extinguished,
1 Green v. Turner, 38 Iowa, 112; Hammond v. Hopkins, 3 Yerg. (Tenn.) 525; Yardborough v. Newell, 10 id. 376.
the extinguishment of the mortgage under such circumstances is, that the mortgage is not extinguished by an extinguishment of 2 Lord v. Morris, 18 Cal. 482. the mere personal liability of the mortHenry v. Confidence Co., 1 Nev. 619. gagor by operation of law or by agreement ✦ Hurley v. Estes, 6 Neb. 386.
5 Harris v. Mills, 28 Ill. 44; Hagan v. Parsons, 67 id. 170.
6 Gower v. Winchester, 33 Iowa, 303; Clinton Co. v. Cox, 37 id. 570.
7 Ross v. Mitchell, 28 Tex. 150; Duty
v. Graham, 12 id. 427.
8 Schumacker v. Siebert, 18 Kan. 104. 9 Chamberlin v. Muder, 16 N. H. 381. The general rule that a discharge of the debt discharges the mortgage lien given to secure it, does not apply where the debt is merely barred by the statute of limitations or by a certificate in bankruptcy. Buck v. Cooper, 26 Miss. 599. The rule relative to
of the parties, even if there is no intention to extinguish the debt itself, Donnelly v. Simonton, 13 Minn. 301; holding that the mortgage is not extinguished by the running of the statute upon the note or obligation which it is given to secure. In Higgins v. Scott, 2 B. & Ad. 413, this principle is illustrated in the case of an attorney's lien upon a judgment, which it was held might be enforced, although his remedy for the debt itself was barred. Potter v. Stransky, 48 Wis. 235; Thayer v. Mann, 19 Pick. (Mass.) 535; Townsend v. Jennison, 9 How. (U. S.) 413; Belknap v. Gleason, 11 Conn. 160; Heyer