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mortgagee was familiar with the mortgagor's circumstances, and required him to buy the land as a condition of lending the money, although the mortgagor knew nothing of the land and had no use for it. Held, unconscionable and that the land should be re-deeded, but that the mortgage should stand for the other items if the insurance policy were reassigned. The court said: "To state the transaction mildly, it was taking advantage of Duncan's weakness and anxiety, and under the guise of an apparently fair business transaction, exacting a usurious interest which a court of equity cannot sanction. In so far as the parties can be restored to their former position they should be, and the moneys received by Duncan he should pay with interest thereon as he agreed."
This is a case of what is known in England as a "catching bargain.' Such transactions are there always set aside, on general equitable grounds, in spite of the repeal of the statute of usury. The following are the recent leading English decisions on the subject of "catching bargains." In all of these the absence of legal counsel to the borrower was a point on which stress was laid:
Miller v. Cook, L. R., 10 Eq. Cas. 641. a money-lender, agreed with plaintiff, just of age and in financial trouble, to lend him £150 on his reversionary interest under his father's will, and exacted security for £200 with interest at twenty per cent, reducible to ten per cent for punctual pay ment, and advanced only £123, but claimed interest on the whole amount secured. Held, that the security should stand only for the amount actually advanced, with interest at five per cent.
Earl of Aylesford v. Morris, L. R., 8 Ch. App. 484. A money-lender advanced money to a nobleman twenty-two years old, an expectant heir and largely in debt, taking his acceptances, including interest, exceeding sixty per cent. Action on the acceptances was restrained, and they were ordered to be surrendered on payment of the actual advances with five per cent interest.
Tyler v. Yates, L. R., 6 Ch. App. 665. twenty-six years old accepted bills for his brother under age, charging his reversion therewith, and a money-lender advanced the funds, requiring the amount of a former bill, accepted by the minor, to be included, and charging a large discount, each brother having part of the advances. Held, valid only for the sum actually advanced over and above the amount of the former bill, with interest at five per cent. This was put on the ground that the elder brother was never told that his younger brother was under no legal liability on the former bill.
Beynon v. Cook, L. R., 10 Ch. App. 389. One advanced to another, twenty-six years old, £85 on a mortgage of £100 of his reversion of £600, with a provision for interest at five per cent a month after default. The reversion fell in twelve years after. Held, that redemption might be made on payment of the amount advanced and five per cent interest. Jessell, M. R., had said: "It was obviously a very hard bargain indeed, and one which cannot be
treated as being within the rule of reasonableness which has been laid down by so many judges." This was affirmed, James, L. J., saying: "This is a perfectly idle appeal. The appeal is dismissed with costs."
Clark v. Malpas, 4 DeG., F. & J. 401. A poor and illiterate man, between sixty and seventy years old, was induced to sell three cottages, worth from £156 to £380, for house-rent free, and twelve shillings weekly for life, and £100 on his death as he might appoint, with power to require £10 of it to be paid during his life, but without security for such payments and house. Held, that the deed should be set aside and re-conveyance made.
In re Slater's Trusts, L. R., 11 Ch. Div. 227. Expectant heirs, abjectly poor, mortgaged their reversionary interest for £500 upon an advance of only £250. This was effectuated only for the amount advanced, although there was a subsequent deed reciting that the difference "was a fair and reasonable remuneration for the delay in payment until after the decease," etc. The court pronouned it "a grievously hard bargain," and pronounced the recital "palavering, insincere and dishonest."
Croft v. Graham, 2 DeG., J. & S. 155. A moneylender procured from an expectant heir, twentythree years old, of irregular and extravagant habits, with an income of £180 a year, a warrant of attorney to enter judgment for £7,100, and to take out execution for £3,500 with interest at five per cent per month. A settled account between the parties showed £3,000 due, and this included interest at that rate and more. Actual advances and interest at five per cent only were allowed. Knight Bruce, L. J., said: "I am surprised at the appeal, and speaking respectfully, I am surprised at some of the arguments addressed to us on behalf of the defendant." The arguments in question were probably the following: "Why is the plantiff to have money on terms on which he never expected to get it, and on which nobody would have lent it to him? The court can do no good by interfering with transactions of this nature. They are not like loans on security; they are speculations, the risk of losing the whole of the sums advanced being very great." "What rate of interest is reasonable depends on the risk." If such engagements are to be set aside, "persons in that position will be put upon still harder terms in borrowing, since the lenders must take into account the risk of a chancery suit."
Smith v. Kay, 7 H. of L. Cas. 750. During the last two years of his minority, Kay, having a life interest in real estate of £6,000 a year and £120,000 in the funds, had accepted bills to the amount of £53,000, for which he had received but some £23,000, and the day after coming of age he executed securities therefor. These were set aside. The other party was a solicitor, but the decision was not put on the ground of the fiduciary relation alone, but in part on the ground of the unconscionable nature of the dealings.
See Earl of Chesterfield v. Janssen, 2 Ves. 125; 1 White & Tudor's Lead. Cas. in Eq. 541.
notice on the mortgagor, who then still owned the fee. Plaintiff purchased at the sale, and received the usual deed. Held, that although the foreclosure and deed were void as against the mortgagor and the legal title, they nevertheless operated as a valid assignment of the mortgage to the purchaser, and therefore he owned it and could maintain the action to foreclose it. The head note is: "The purchaser at a mortgage sale under an attempted statutory foreclosure, void as against the mortgagor for want of notice, stands as an assignee of the mortgage." It follows that if such an assignee were to get into possession under his mortgage by consent of the owner of the fee he would be a mortgagee in possession. But no such question arose in the case, though it is often cited as a supposed authority on the law of mortgagee in possession.
See also, Kelly v. Caplice, 23 Kans. 474; S. C., 33 Am. Rep. 179. There a woman and her husband, in consideration of the satisfaction of a demand of $600 against the husband, and the payment to them of $275, absolutely assigned to A. and B. a policy in favor of the woman on her husband's life. A. paid the subsequent premiums until maturity, when the amount due was $1,477.73. The insurers refused to pay it without the woman's receipt on the back of the policy. She refused to sign her name without receiving $477.73 when the policy was collected. Accordingly A. executed a written agreement to pay her that sum on the payment of the policy. She signed her name, and A. and B. received the full amount. In an action against them on the agreement, held, that it was unconscionable, and not enforceable beyond an amount fairly due for her service and inconvenience in writing her The court said: "Morally, Mrs. C. ought appointed his assignee. Defendant owned a mortgage
to have given it" (her signature) "without making the extortionate demand she did. Instead of acting justly, she attempted to take advantage, and an unfair one, of the plaintiffs in error, who had bought and paid for all her right and interest in the policy. She thought herself in a position to exact an unconscionable bargain, and for service worth only a few cents she demanded and received a written promise for the payment of nearly five hundred dollars. The mind revolts at the enforcement of such a promise, and the courts as a rule under such circumstances seize upon the slightest act of oppression or advantage to set at naught a promise thus obtained."
AS SUCH CAN GET
OUT Judge Denio, in writing the opinion, attempted to decide something that was not before the court at all, as follows: "If this had been an ordinary mortgage between individuals, the plaintiff would not be entitled to recover. The mortgagor under whom he claimed had made default, and the estate was forfeited at law. The interest which remained in plaintiff, as the grantee of the mortgagor, was an equity of redemption. But the owner of an equity of redemption to mortgaged premises after forfeiture never could maintain ejectment against the mortgagee in possession or any one holding under him. He has only the right to redeem in equity. Formerly the mortgagee could maintain ejectment, but this is prohibited by the Revised Statutes. If, however, the mortgagee obtains possession without force, he is entitled as well since as before the statute to hold it against the mortgagor." Can it on principle be said that though the mortgagee no longer has any right of possession under his mortgage, yet if he can by watching his chance manage after default to get into possession without force," he is lawfully in possession as mortgagee? This would leave open to him any trick or device by which he could get possession without force, or in case of vacant property all he would have to do would be to enter on it.
Robinson v. Ryan, 25 N. Y. 320. An action to foreclose a mortgage. A former owner of the mortgage foreclosed it under the statute, but failed to serve
Winslow v. Clark, 47 N. Y. 261. This was an action to require defendant to execute a conveyance to plaintiff of certain real estate, or in case it had been sold, to obtain judgment against defendant for the value thereof. One Whiting was adjudicated a bankrupt by the United States District Court, and plaintiff was
on certain real estate of the bankrupt (the land in question), and foreclosed the same by action, the bankrupt being made a party, but not the assignee. At the sale which ensued defendant became the purchaser, and took possession. He then conveyed to one Babcock, who was in possession when this action was begun, but was not made a party. The trial was before a referee who held that defendant could not be obliged to convey to the assignee, and that he was not liable to the assignee for the value of the land; that as the assignee was not made a party to the foreclosure it was void as against him, and judgment was given for defendant. The Court of Appeals affirms this, but the opinion which is by Judge Rapallo has caused the case to be cited as deciding more. The case decided that the assignee, the foreclosure being void against him, was still owner of the fee, and that therefore he was not entitled to the judgment he sought of either a conveyance to him or for the value of the property. This is all there was in the case. But the opinion says: "Plaintiff was entitled, on this state of facts, to maintain an action to redeem. But the present action was not properly framed for that purpose. Babcock was a necessary party." This is obviously correct, but it has been cited as meaning that an action to redeem was the only one open to the assignee, which the opinion does not say. The foreclosure and sale being void left defendant, who purchased at the sale, just where he started, namely, owning the mortgage, and his conveyance to Babcock operated as an assignment of the mortgage to the latter. And Babcock owning the mortgage, and being in possession, the assignee, owner of the fee, was at liberty, if he chose, to consider Babcock as a mortgagee in possession, and bring an action against him to redeem. This is all that is intimated by the portion of the opinion quoted. But while the assignee was free to take such a course, he was not obliged to. Babcock was not, nor had defendant been, in possession by the permission or assent of the assignee. Therefore, the latter, owning the fee, had the right to bring ejectment against Babcock, and put him out, leaving him with his mortgage in his hand, which he could foreclose validly and effectually against the assignee. The opinion however in another clause says that Babcock by defendant's conveyance to him " acquired only the title of defendant, who was mortgagee in possession." This seems a clear oversight, there being nothing in the case to show that defendant got possession by the permission, or assent, or even with the knowledge of the assignee, but the contrary being the fact.
Miner v. Beekman, 50 N. Y. 337. This action was
brought by plaintiff as owner of the fee against defendants as grantees of a mortgagee in possession, and the complaint asked for an accounting to ascertain the amount due on the mortgage, and that upon payment the same be discharged of record, and plaintiff let into possession. Thus the action was purely one to redeem, defendants being acknowledged to be mortgagees in possession or the grantees of a mortgagee in possession, which is the same thing. The trial court dismissed the action on the ground that it was embraced within section 97 of the (old) Code of Procedure, which limited the time for the commencement of actions for relief, not provided for in preceding sections, to ten years, the action not having been begun within that time. This is affirmed. Judge Grover wrote the opinion, and in answer to the attempt of plaintiff's counsel to get the Court of Appeals to consider the action as one of ejectment, in order to avoid the ten years' limitation, and bring it under that of twenty years, said: "This instead of an action to recover real property or its possession within the meaning of the Code, was an equitable action to have the amount due on the mortgage ascertained." This case would not be noted here, as it has no bearing on the question being discussed, were it not for a palpably erroneous application of it in a case to be hereafter referred to.
Hubbell v. Moulson, 53 N.Y. 225. Action of ejectment. Defendants were mortgagees in possession, but the allegation of the complaint was that they had already received from the rents and profits more than the amount due on their mortgage, and that there was now nothing due thereon. Held, that the action could not be maintained, but that defendants being in possession as mortgagees, plaintiff's remedy was an action for an accounting and to redeem. The opinion all through speaks of defendants as mortgagees in possession, and there appears no dispute on that head. Plaintiff's theory was that as soon as the mortgagee in possession had collected rents and profits sufficient to satisfy the mortgage, an action of ejectment would lie to put him out, but the court held that an action to redeem must be brought, so that an accounting could be had, in which the mortgagee would be charged with rents and profits received and credited with expense for repairs, etc.
Trim v. Marsh, 54 N. Y. 599. This was simply an action to redeem certain premises from a mortgage under which the defendant was in possession. The defendant showed in defense that while in such possession she had obtained a judgment against plaintiff's grantor, while said grantor owned the fee, and caused his interest in the property to be sold under execution, which she purchased, receiving the sheriff's deed therefor. She thus claimed to own the fee, which would of course preclude plaintiff from the right of redemption claimed. Judgment was given for plaintiff, which was reversed by the Court of Appeals. The only question in the case is stated by Judge Reynolds, who wrote one of the opinions, as follows: "The precise question to be determined in this case is whether a mortgagor, after having surrendered possession to his mortgagee, has such an interest in the mortgaged premises as may be sold on execution." The court held that notwithstanding such surrender, the mortgagor was still the owner of the fee, and that the same might be sold under an execution against his property; and that therefore defendant acquired full ownership by the execution sale. This case has been cited as bearing on the subject of this article principally because of the following careful paragraph in Judge Earl's opinion: "Prior to the Revised Statutes the mortgagee could maintain ejectment to recover the mortgaged premises. This right has been taken away, and now the mortgagor, both before and after default,
is entitled to the possession of the premises, of which he cannot be deprived without his consent, except by foreclosure."
Ten Eyck v. Craig, 62 N. Y. 406. This was simply and only an action to redeem. Defendants showed that their testator, while in possession of the premises, purchased the same under execution sale. Plaintiff's counsel contended that such purchase was for the benefit of the owner of the fee, because said testator was mortgagee in possession at the time thereof, and that that fact made him a trustee of the owner of the fee, and therefore he could not avail himself of the purchase, but held in trust under it for his cestui que trust. The question of what constitutes a mortgagee in possession was not in the case in any shape, and Judge Andrews in the opinion says, that "assuming that the learned counsel for plaintiff is correct in the position that Craig (defendants' testator), at the time of the sheriff's sale stood, in relation to the premises, in the character of mortgagee in possession, the question arises, whether a mortgagee in possession can buy the mortgagor's title on execution sale, upon a judgment in favor of a third person against the mortgagor, and set up a title under the sale as a defense to an action by the mortgagor to redeem." The court decided that he could, and that he was not trustee to the mortgagor or owner of the fee. But this case is often cited on account of the following terse and correct statement, in the opinion, of what is necessary to make a mortgagee a mortgagee in possession: "Under the English law, he (the mortgagee) has the right to possession, because he has the legal title to the land. Under our law, he cannot obtain possession until foreclosure, except by consent of the mortgagor, because until that time he has no title."
Madison Avenue Baptist Church v. Oliver Street Baptist Church, 73 N. Y. 82. Action of ejectment. Plaintiff and defendant agreed to and adopted a plan of union, which provided for the extinction of plaintiff, the transfer of its membership and name, and all of its property, to defendant; and the assumption and payment by defendant of all plaintiff's debts, including certain mortgages on its real property, viz., a church edifice. In pursuance of such plan, by permission of the Supreme Court, granted on a petition setting forth the same in full, plaintiff conveyed its said property to defendant, which entered into possession, and paid off the mortgages, taking assignments thereof. The Court of Appeals held that the conveyance was void, the Supreme Court having had no jurisdiction to permit it; but nevertheless, that by the payment of the mortgages and taking assignments thereof, after entering into possession, defendant had become a mortgagee in possession, and was entitled to reimbursement before being obliged to yield up the premises. Judge Earl wrote the opinion, which says: "The defendant was a mortgagee in possession of the property, and it was lawfully in possession by consent of the plaintiff. * While under our present law a mortgagee cannot bring ejectment to obtain possession of the mortgaged premises, being lawfully in possession under a mortgage upon which some amount is due, he can retain possession against the mortgagor until such amount is paid." And then comes this: "It is ordinarily sufficient that a mortgagee is lawfully in possession after default on the mortgage. The court will not then deprive him of the possession until his mortgage is paid. The possession need not be given under the mortgage, nor with a view thereto.
* Here, while the defendant had failed to get the title, yet it was placed in possession by the plaintiff. It was not a wrong-doer. There was no law which restrained the plaintiff from putting defendant in possession of its property," etc. This is a clear exposition of the law of the case, excepting the one sentence,
"The possession need not be given under the mortgage, nor with a view thereto." The defendant here was put into possession with a view to the mortgages
with the express plan, agreement and request of plaintiff that defendant should assume and pay them. What application to the case then has this sentence? And is it correct? It is not in accord with the views of the learned judge in this and other cases. Is it not a clear inadvertence? Who can tell how often it will be quoted, and how many doubts, if not erroneous decisions, it may cause in trial courts?
Shriver v. Shriver, 86 N. Y. 575. This was an action in partition. The parties thereto made title through a certain judgment of foreclosure and sale, under which one Sarah E. Murray became the purchaser. She was not the mortgagee, but a stranger. Under the foreclosure deed to her she entered into possession, and the parties to this action of partition were her successors in interest. At the partition sale one Livingston bid off part of the land. Subsequently he moved the court that he be released from his bid on the ground that one McIlveen at the time of said foreclosure action had an undivided half interest in part of the said land bid off, but was not made a party to said foreclosure, and that his said interest was still outstanding. Against this it was urged that as said Sarah E. Murray, the purchaser at said foreclosure sale, entered into possession of the land, she was thereby a mortgagee in possession, and her grantees and successors held the same position; and that as more than ten years had elapsed since she so entered, Mcllveen's time to redeem had expired, and thus his interest had ceased, and the ⚫ title had become perfect in the parties to the partition action. The Court of Appeals, the opinion being by Judge Folger, held that said Sarah E. Murray did not, by the foreclosure and sale to her, and her entry thereunder, become a mortgagee in possession, nor acquire such a right, "for she was not the mortgagee, nor the assignee of the mortgagee in possession, and could not, in that character, have defended against McIlveen or his assigns." Livingston was released from his bid. This is certainly a valuable decision. But the learned judge, writing the opinion, went beyond the case to intimate what would be good law in another case, and it can scarcely be denied, said something that is mischievous. He wanted to distinguish the case before him from Miner v. Beekman et al., 50 N. Y. 337 (cited above), and said: "The case is supposed to be like that of Miner v. Beekman. It is different in an important particular. There the entry was by the mortgagee, who was also the purchaser at the sale. He thus became a mortgagee in possession, and could defend against the owner of the equity of redemption, or his representative, any action, except one for an accounting of the rents and profits, and to redeem." Now, in the case of Miner v. Beekman, no snch thing as this was decided, or even before the court. On the contrary, the complaint in that case was for an accounting and for plaintiff to be allowed to redeem; the very foundation of the action thus being an acknowledgment that defendants were mortgagees in possession, and it being brought on that theory alone. If it had been an action in ejectment, then the question would have arisen whether defendants were mortgagees in possession, and there can now be no doubt that the decision would have been that they were not; but the court decided that it was not an action in ejectment. but to redeem (see above). It will be seen in the case which next here follows that the Court of Appeals have since decided the very contrary of what Judge Folger would seem to attribute to them in Miner v. Beekman. And when we stop to think of it, what difference or distinction on any principle can there be between the mortgagee taking possession, or his assignee of the mortgage doing so? Evidently none.
The owner of the mortgage, whether he be the mortgagee or his assignee, becomes mortgagee in possession in the same way. In Shriver v. Shriver, a stranger purchased at the void foreclosure sale, and entered into possession. She got no title thereby to the premises; but the sale did operate as an assignment to her of the mortgage sought to be foreclosed. In Miner v. Beekman, the mortgagee himself becomes the purchaser, and took possession. He got nothing by the void sale - he had after it only just what he had before, namely, his mortgage. Thus in each case the owner of the mortgage took possession, neither acquiring any right by the void foreclosure under which he purchased. In each instance it was the owner of a mortgage taking possession. Where is the "important particular" in which the cases differ? One that took possession was the mortgagee, and the other was the assignee of the mortgage; but where is the principle or reason that would make the possession of the one in any respect different from that of the other? Each one owned a mortgage and took possession under it without the permission or assent of the owner of the fee, and that is all there is of it.
Dunning v. Leavitt, 85 N. Y. 30. This was an action to foreclose a mortgage, in which a deficiency judgment was prayed for against Mrs. Leavitt, to which prayer she interposed a defense. The facts were these, as proved on the trial: One Howell owned the premises, subject to a mortgage for $1,800, Roberts, the mortgagee, began an action in 1857 to foreclose, making Howell, the owner of the fee, a party, and served summons on him by publication on the ground that he had departed from his residence and could not be found; but the fact was that he was dead. His heirs at law of course were not made parties. At the ensuing foreclosure sale, Roberts, the mortgagee, purchased, and went into possession under the referee's deed. He subsequently conveyed the premises by warrantee deed, his grantee conveyed in the same manner, and so on till the premises came down the line to one Fisher, who executed a mortgage on the premises of $15,000 to Dunning, et al., plaintiffs in this action; and Fisher granted in the same manner to one Fuller, the grantee assuming the $15,000 mortgage, and subsequently Fuller grauted to defendant, Mrs. Leavitt, with whom the chain ended, she also assuming the said $15,000 mortgage as part of the purchase price. Each grantee took possession. The heirs of said Howell, deceased, brought an action of ejectment against Mrs. Leavitt in 1878, and she, not answering, suffered judgment of ejectment to be taken against her by default, and said heirs obtained possession. Dunning, et al., mortgagees, were not parties to the ejectment action, and of course were not bound by it. Subsequently to it they commenced this action to foreclose their said mortgage, praying for a deficiency judgment against Mrs. Leavitt because of her said assumption of said mortgage. The Howell heirs were not parties. The trial court gave judgment in favor of Mrs. Leavitt, holding 'that there was a "paramount outstanding title" in the Howell heirs, that Roberts, who held the mortgage for $1,800, nor any of the subsequent grantees of the premises in question, ever obtained possession of such premises with the consent of the mortgagor, or owners of the equity of redemption, nor by any valid proceedings to foreclose said mortgage, or otherwise;" and that Mrs. Leavitt "derived no estate, right, title, interest or claim whatever in or to said lands and premises, and that the agreement of said Leavitt to assume the payment of plaintiffs' said mortgage was without consideration;" and that Mrs. Leavitt was not liable on her covenant assuming said mortgage, there being no consideration therefor. The court refused plaintiffs' request to find that Mrs. Leavitt was a mortgagee in possession, and
that the Howell heirs could not have maintained the ejectment action against her, to which plaintiff excepted. (The writer has looked into the printed case for these facts, and also into Mr. Hun's report of the case, which contains a very careful summary.) The General Term of the Supreme Court of the Second Department (20 Hun, 178), reversed this judgment, holding that Roberts by his abortive foreclosure, and the possession he got under it, became a mortgagee in possession, and that each of the grantees from him down to and including Mrs. Leavitt was a mortgagee in possession; and that being a mortgagee in possession, Mrs. Leavitt could not be dispossessed in ejectment, and was liable on her covenant of assumption. The Court of Appeals reversed this, and held that Mrs. Leavitt was not liable for a deficiency, on the express ground that she received no titie. Judge Andrews in the opinion says: "But the consideration for her covenant wholly failed upon her eviction by paramount title. The grantors of Fuller had no title or estate in the land when they executed the mortgage, or when they conveyed to him, nor did Fuller have any when he conveyed to defendant" (Mrs. Leavitt). The Court of Appeals reporter omits in his summary of the facts of this case to state that the ejectment action against Mrs. Leavitt was allowed to go by default on failure to answer; from which it would be inferred that it had been contested, and was regarded as res adjudicata, which was not the fact. Oral evidence of the death of Howell before the Robert's foreclosure, and of other facts, was heard at the trial of this foreclosure action. Whether Mrs. Leavitt was legally evicted by paramount title was the question of fact litigated. Besides the plaintiffs in this case were not parties to the ejectment action. It need hardly be suggested that Mrs. Leavitt, by suffering a default in that action— which might have been collusive-could not release herself from her covenant of assumption. If such a thing as that could happen, mortgagees would indeed stand in evil case. Nor does the reporter make any mention in the head-notes of the leading point decided by this case. He summarizes the trite rule that a grantee is not bound by his assumption of a mortgage as part of the purchase price, when he receives no title or interest by the conveyance; while the important holding that Mrs. Leavitt had no right, title or interest in the land, notwithstanding her succession to the interest of Roberts, the mortgagee who purchased and entered into possession under the void foreclosure in 1857, is not even alluded to. It should also be observed, in connection with this case, that if Roberts had been a mortgagee in possession, the right to redeem had long since elapsed before Mrs. Leavitt purchased, and thus the title she received would have been perfect. Ten years was the time limited for an action to redeem. (50 N. Y. 468.)
John Gross v. Arthur Welwood. (Decided by the Court of Appeals, Oct. 10, 1882; not yet reported.) This was an action of ejectment, commenced in 1878. Plaintiffs made title as the heirs of John Gross, deceased, who became seized and possessed of the premi. ses, situated in the city of Brooklyn, in 1834. Defeudant Welwood (the other defendants were tenants under him), pleaded right of possession under an assessment lease, and that he was mortgagee in possession; and proved that plaintiffs' said ancestor mortgaged the premises in 1835 to one Bergen, the mortgage payable in one year from its date, and that it was still outstanding, Bergen being dead; also that in 1839 Bergen received an assessment lease of said premises for five hundred years from the city of Brooklyn, such lease resulting from a sale of the premises for non-payment of an assessment; and there was evidence tending to show that in 1840 said Bergen was in possession of the premises. In that year he assigned the assessment
lease to one Chattelle, who took possession, and in 1850 the latter assigned said lease to defendant Welwood, who took possession. Both of said assignments had covenants of quiet enjoyment. Plaintiffs' ancestor died about 1850. On the trial the assessment lease was shown to be absolutely void, and it was so treated on appeal. The question in this case was whether it was enough for defendants to show simply that said Bergen was in possession in 1840 in order to make him out a mortgagee in possession; or in other words, assuming that he was in possession then, did it follow that he was a mortgagee in possession, even though he might have gone into possession, not under his mortgage by consent of Gross, but by means of and under the assessment lease? The evidence simply tended to show that he was in possession; how he got it did not ap pear, and could only be a matter of inference from all the facts and circumstances of the case. The city court of Brooklyn at General Term held as follows: "It made no difference under what claim Bergen weut in, whether claiming under his mortgage alone, or under the corporation lease. If he was in possession at all, being a mortgagee, he was entitled to hold his possession, unless the possession was redeemed." (Quoted from opinion.) The Court of Appeals' decision on the question (opinion by Judge Danforth), is as follows: "It was for them (the jury) to say whether Bergen was, in fact, in possession, and if so, the character of that possession, and whether lawfully acquired, or not. The case went to the jury in
* * *
a shape most favorable to defendants, and their verdict establishes that possession was not taken under the mortgage, and therefore that the plaintiffs were entitled to recover."
This is the latest case on the subject of this article, and ought to put at rest the rule that it is not enough that the mortgagee gets into possession, but he must get in lawfully, namely, by permission or assent of the owner of the fee, under his mortgage and with a view to its payment or security, in order to be a mortgagee in possession. When he becomes thus in possession, the law as it was before the statute, or as it is since, has nothing to do with his possession. He is in simply and only by virtue of an understanding or agreement between him and the owner of the fee allowing him to take and hold the land as a pledge for the payment or better security of his mortgage. Suppose the owner of the fee should permit the mortgagee upon default to go into possession under an arrangement between them that the latter should hold the land as a pledge for five years only, during which time he should apply the rents and profits on the mortgage; could there be any pretense at the end of the five years that the mortgagee, granting that his mortgage was still unsatisfied, would have any right to stay longer? It may be well to add to our State authorities a clear and explicit case decided by the United States Supreme Court-Russell v. Ely, 2 Black, 575. The case arose under the statute of Wisconsin taking away the right of possession from the mortgagee, it being the same as our statute. The mortgagee had been let in by a tenant of the mortgagor at the expiration of the term of tenancy, and the mortgagor brought ejectment against the mortgagee. The opinion is by Judge Miller, and says:
"If the mortgagee has no right to recover the possession by legal proceedings, it would seem that he should not be permitted in any other manner to obtain that possession against the consent of the mortgagor, or the person holding under him. We are however referred by counsel for plaintiff in error to the cases of Gillett v. Easton, 6 Wis. 30, and Tallman v. Ely, 16 Wis. 257, as establishing a contrary doctrine. A careful examination of these cases does not sustain the proposition in favor of which they are cited, to an extent which will conflict with the instruction of the