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 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 (d).

In the case of Pope v. Biggs (e) 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, on the ground that as the mortgagee might have evicted the tenant, and obtained

(a) Vide 2 Mer. 259; Williams v. Medlicott, 6 Price, 496. (b) Supra, p. 406.

(c) Doe v. Maisey, supra; and Doe v. Giles, 5 Bingh. 421. (d) Supra, p. 408. (e) 9 Barn. & Cress. 245.

the rents due in an action for mesne profits, the mortgagee must be entitled to receive them, without bringing an ejectment. A question (f) has been raised whether if the tenant should refuse to 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.

If the demise is prior to the mortgage, 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 (g), belong of right to the mortgagee, who may distrain

(f) In the Law Magazine for November 1836, an able article will be found on the respective rights of mortgagee and mortgagor for recovery of rents.

(g) See 4 Ann. c. 16, s. 9, 10.

for them (h), or if the tenant holds from year to year, may recover them in an action for use and occupation (i).

In any legal proceeding against the tenant subsequent to the notice, he may show his lessor's title to have determined (k), and therefore the proceedings should be in the name of the mortgagee.

To enable a mortgagee to distrain on the mortgagor in possession, an agreement to that effect should be inserted in the mortgage deed, and a sum certain be stated by way of rent ().

A further privilege annexed to the mortgagee's estate forms an exception to the general rule of equity, that a party suing at law shall not be allowed to sue in equity at the same time; for a mortgagee may at the same time proceed by action at law on his bond and covenant, and by bill in equity for a foreclosure (m); and he may take the body of the debtor in execution, and still be entitled to the benefit of his security(n). But the mortgagor shall not be compelled to make payment on the bond, unless the mortgagee is in a condition to re-convey the estate, and deliver up the title, and therefore in a

(h) Moss v. Gallimore, 1 Doug. 279.

(i) Birch v. Wright, 1 T. R. 378.

(k) See Marriott v. Edwards and others, supra!

(1) See 5 Nev. & Man. 511.

(m) Burnell v. Martin, Dougl. 417; Schoole v. Sall, 1 Sch. & Lef. 176.

(n) Davis v. Battine, 2 Russ. and Mylne, 76.

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case (o) in which the mortgagee having died without any heir who could be discovered (p), the executor was restrained by a court of equity from proceeding at law to compel payment of the money, which was ordered to be paid into court until the heir could be found; and in another case (q), in which the title deeds had been lodged by the mortgagee with an attorney who claimed a lien on them, the Court granted an injunction against the proceedings at law, and ordered the money to be paid into the bank, until the title deeds were secured, and a re-conveyance could be had. And in another case (r), an injunction was granted restraining mortgagees of a West India estate from proceeding by bill of foreclosure in a colonial court, after a decree for an account on bill filed in England to redeem; all the parties being in England.

The mortgagee is entitled out of the profits of the estate to repay himself all his necessary expenses attending the collection of the rents (s), and he may stipulate with the mortgagor for the appointment of a receiver, to be paid by the latter (t), he may also if the property lies dispersed, or at a distance, or is so circumstanced that the mortgagee must, if the property had been his own, have appointed a bailiff

(0) Cited in Schoole v. Sall, supra.

(p) As to this now, vide 1 Will. IV. c. 60,. s. 8; 4 & 5 Geo. IV. c. 23; Ex parte Goddard; Ex parte Stanley, supra; Ex parte Whitton, 1 Keen, 278.

(q) Schoole v. Sall, supra.

(r) Beckford v. Kemble, 1 Simons & Stuart, 7.

(s) 3 Atk. 518. (t) Chambers v. Goldwin, 9 Ves. jun. 271

or receiver to manage it and collect the rents, appoint a bailiff or receiver of the rents without the authority of the mortgagor (u). It is, however, clearly settled, that the mortgagee shall not be allowed to make any charge for his personal trouble(x), nor appoint himself the receiver, even under an express agreement for that purpose with the mortgagor (y), for he is entitled to no benefit beyond his principal, interest and costs, besides that such an agreement might subject the mortgagor to imposition, and tend to usury.

Much discussion has arisen on the question to what extent a mortgagee of a West India estate may charge commission. The result of the different cases appears to be, that whilst he is mortgagee out of possession, he may stipulate for the consignments of the produce, and charge commission on the net produce as a compensation for his trouble (2). But when he is in possession, he stands in precisely the same situation as a mortgagee in possession in England; and consequently, although, if he employ another person as consignee, commission may be charged; yet if he chooses to be consignee himself, he has no commission (a).

(u) Bonithon v. Hockmore, 1 Vern. 316; Godfrey v. Watson, 3 Atk. 518; Davis t. Denby, 3 Madd. 170.

(x) Godfrey v. Watson, supra; Langstaffe v. Fenwick, 10 Ves. 405.

(y) French v, Baron, 2 Atk. 120.

(z) Bunbury v. Winter, 1 Jac. & Walk. 255.

(a) Leith v. Irvine, 1 Myl. & Keen, 277; Chambers v. Goldwin, 9 Ves. 271; et vide Forrest v. Elwes, 2 Mer. 68.