at first subsisted. And that consequently by virtue of such possession, the party acquired a perfect title.1 The Supreme Court of the United States liken the relation of landlord and tenant to the relation of mortgagor and mortgagee, and consider that there is no more propriety in refusing a lessee, who has openly disavowed the title of the landlord, the protection of the statute, than there is any other fraudulent trustee, from the time the fraud is discovered. There is no rule of law or equity which makes it a matter of duty to refuse to do it.2 All the cases, however, show that every presumption in such case is in favor of possession in subordination to the title of the true owner, and that the adverse possession must be made out, not by any inference, but by a clear and positive proof of a claim on the part of the tenant, and of an acquiescence on the part of the landlord, who is knowing to the same.3

445. If the tenant has attorned to a third person, and the landlord has assented to such attornment, and thereby disclaimed any title in himself, the tenant from that time may set up his possession as adverse to the landlord. Thus, in a case which involved a question of title between the V. S. and the K. patents, in the State of New York, the plaintiff attempted to recover on the ground of the tenancy of the defendant. But it appeared that the defendant, after it had been decided that his lot belonged to the K. patent, and not to the V. S. patent, under which he originally entered, had purchased of the K. proprietors. It also appeared that the lessors of the plaintiff had declared, that he had given up all claim to the land, and that he did not blame the defendant for having purchased under the K. patent. The court held, that, under these circumstances, the lessor of the plaintiff must be deemed to have been privy to, and to have assented to the defendant's attornment to the proprietors of the K. patent; and

1 Camp v. Camp, 5 Conn. R. 291. And see Jackson v. Davis, 5 Cow. (N. Y.) R. 123; Moore v. Turpin, 1 Spear, (S. C.) R. 32 (Court of Appeals). Duke v. Harper, 6 Yerg. (Tenn.) R. 280; Phillip's Lessee v. Robertson, 2 Tenn. R. 399.

2 Willison v. Watkins, 3 Peters, (U. S.) R. 43; and see Blight's Lessee v. Rochester, 7 Wheat. (U. S.) R. 535; [Longwood v. Bentley, 3 Grant, (Penn.) 177; Sherman v. Champlain Transportation Co., 31 Vt. (2 Shaw,) 162; Bannon v. Brandon, 34 Penn. St. 263.].

8 See ante, Ch. XXXI. § 384; [Zellar v. Eckhart, 4 How. (U. S.) 289; Rabe v. Fyler, 10 S. & M. (Miss.) 440; Rigg v. Cook, 4 Gilm. (Ill.) 336.]

✦ Jackson v. Davis, 6 Cow. (N. Y.) R. 133.

that the plaintiff could not recover on the ground of the prior tenancy of the defendant. The intention, says Lord Redesdale, of the act of limitations being to quiet the possession of lands, it would be curious if a tenant for ninety-nine years, attorning to a person insisting he was entitled, and disavowing the tenure to the knowledge of his former landlord, should protect the title of the original lessor for the term of ninety-nine years. That would, he thought, be too strong to hold, on the ground of the possession being in the lessor, after the tenure had been disavowed to the knowledge of the lessor.2 In another case: "When," says the Master of the Rolls, "is the right to recover possession of land, subject to a lease, to be considered as having accrued? Not from the time when any person dealing with the leases, or dealing with those entitled to the leases, gets possession and claims to be entitled in fee, but from the time when the person claiming under a lease pays rent to a party claiming wrongfully in reversion immediately expectant on such lease; for then the adverse title of the person who receives the rent, under such circumstances, is first really brought into operation against the party who claims, on the expiration of the lease." 8

446. But where the tenant of land for a year held over, and after the expiration of his term paid rent to a stranger, and refused to quit the premises, being called upon by the agent of the lessor for that purpose, this was held to be no disseisin of the lessor, not even at his election, nor such as would prevent the operation of a deed from the lessor to a third person. Indeed, unless there has been an attornment to a third person, by the landlord's knowledge and acquiescence, the tenant will not be admitted to prove a parol disclaimer merely, on the part of the landlord, of the relation subsisting between them. As, where the defendant, who, it was shown, entered as tenant, offered to prove that the lessors had disclaimed any right to the premises, the court said, that such a disclaimer as was there set up could be of no validity, and that such evidence, if admissible, would lead to fraud and perjury. And

1 Jackson v. Welden, 3 Johns. (N. Y.) R. 283.

2 Hoveden v. Ld. Annesley, 2 Sch. & Lefr. R. 629.

3 Chadwick v. Broadwood, 3 Beav. Ch. R. 316 (Rolls Court).

Porter v. Hammond, 3 Greenl. (Me.) R. 188.

5

6 Jackson v. Van Vosburgh, 7 Johns. (N. Y.) R. 186; Jackson v. Kisselbrack, 10 Id. 336.

the doctrine has frequently been reiterated,1 that evidence of a parol disclaimer of title to real property is inadmissible, on the ground of being in direct hostility to the principle of the statute of frauds.

1 Brandt v. Livermore, 10 Johns. (N. Y.) R. 358; Jackson v. Carey, 16 Id. 305; Jackson v. Davis, 5 Cow. (N. Y.) R. 123. The rule that the tenant cannot resist the title of his landlord is not applicable, it seems, in Pennsylvania, where the title of such landlord is a Connecticut title, existing in violation of the laws of Pennsylvania. The tenant, therefore, after purchasing a Pennsylvania title, and continuing to hold under it, may set it against his original landlord, who claimed under a Connecticut title, though subsequently to such purchase the landlord also took out another Pennsylvania title. Satterlee v. Matthewson, 13 Serg. & Rawle, (Penn.) R. 133. The following provisions in relation to the doctrine of prescription are from the Civil Code of Louisiana, t. 23, c. 4, p. 701. They are admirably expressed, and correspond pretty nearly to the rules laid down as the common law: :

"ART. 3476. Those who possess for others, and not in their own name, cannot prescribe, whatever may be the time of their possession. Thus, farmers, depositaries, usufructuaries, and all those generally who hold by a precarious tenure, and in the name of the proprietor, cannot prescribe on the thing thus held.

"ART. 3477. The heirs of the persons holding under the persons mentioned in the preceding article cannot prescribe, any more than those from whom they held such things.

"ART. 3478. Notwithstanding what is said in the two preceding articles, precarious possessors and their heirs may prescribe, when the cause of their possession is changed by the act of a third person; as if a farmer, for example, acquires from another the estate which he rented; for, if he refuse afterwards to pay the rent, if he declare to the lessor that he will no longer hold the estate under him, but that he chooses to enjoy it as his own, this will be a change of possession by an external act, which shall suffice to give a beginning to the prescription.

"ART. 3479. Those to whom tenants, depositaries, and such other persons having only a precarious possession have conveyed the same by a title capable of transferring property, may prescribe for the same.

"ART. 3480. One cannot prescribe against his own title, in this sense, that he cannot change, by his own act, the nature and the origin of his possession. Thus, he whose possession is founded on a contract of lease, which is adduced, is considered as always possessing by the same title, and cannot prescribe by any length of time.

"ART. 3481. The rule contained in the preceding articles is to be understood in this sense, that a man cannot prescribe against an essential part of the contract. Thus, the creditor of an annuity cannot prescribe against the right of redemption; but one may prescribe beyond his title. So also a person, who has a title for one half an estate, may prescribe for the other half; for it may be that a new title has transferred the property to him, or that he has acquired it without title by thirty years' possession."

CHAPTER XXXIV.

MORTGAGOR AND MORTGAGEE.

447. THE principle that a tenant cannot dispute the title of his landlord, either by setting up a title in himself or a third person, during the existence of the lease or tenancy, it has been considered, applies to mortgagor and mortgagee. Upon the execution of the conveyance by which a mortgage is created, the legal freehold and inheritance, or the legal estate for the term of years created by the mortgage, is construed to be immediately vested in the mortgagee. As, however, the actual occupation and possession of the lands is not always given to the mortgagee, but on the contrary a clause is sometimes inserted in the mortgage, that until default is made in payment of the mortgage money, or of the interest, the mortgagor shall retain the possession and receive the rents, he becomes in many respects tenant at will to the mortgagee. And it is said, that where there is a proviso that the mortgagor shall continue in possession for the number of years given for the repayment of the mortgage money, he will then be tenant for years.3

448. The doctrine that the mortgagor is tenant at will to the mortgagee has, however, been frequently discussed, and it is very clear, that although some of the qualities of a tenancy at will subsist between a mortgagor and mortgagee, yet in others they differ.1 A mortgagor, said Lord Mansfield, is not properly a tenant at will to the mortgagee, for he is not to pay him rent. He is only quodam modo. Nothing, said his lordship, is more apt to confound than a simile. When the court, or counsel, call a mortgagor a

1 Willison v. Watkins, 3 Peters, (U. S.) R. 43.

2 2 Cruise, 107; Newman v. Chapman, 2 Rand. (Va.) R. 93.

3 Powsely v. Blackmon, Cro. Jac. 659.

4 Birch v. Wright, 3 T. R. 379; Jackson v. Green, 4 Johns. (N. Y.) R. 186; Jackson v. Fuller, Id. 214; Simpson v. Ammons, 1 Binn. (Penn.) R. 176; Wharf v. Howell, 5 Id. 504; Rockwell v. Bradley, 2 Conn. R. 1; Wakeman v. Barnes, Id. 455; Ellis v. Paige, Pick. (Mass.) R. 48; Wilder v. Houghton, Id. 89; Cholmondeley v. Clinton, 2 Merivale, 172.

tenant at will, it is barely a comparison. He is like a tenant at will. The mortgagor receives the rent by a tacit agreement with the mortgagee, but the mortgagee may put an end to this agreement when he pleases.1

449. But however wanting in exact resemblance may be the relation of a mortgagor to the relation of a tenant at will, all the authorities have concurred in the opinion, that the possession of the mortgagor is not hostile, or adverse to the mortgagee. Thus it was laid down by Mr. Ch. J. Parsons, that if the mortgagor remains in possession, it is not a disseisin of the mortgagee, who may convey the lands mortgaged to a third person, who shall thereupon be seised of the legal estate in the lands, subject to the conditions in the mortgage.2 By Sewall, Ch. J., it was held, that the constructive possession of the mortgagee is important to the security of his title. It has, therefore, he said, been long settled, by decisions of the highest authority, that the possession of the mortgagor is the possession of the mortgagee, and that the mortgagor could make no lease, or contract respecting the mortgaged premises, effectually to bind the mortgagee, or prejudicial to his title. Mr. J. Livingston, also, held, that the mortgagor occupies, by the mortgagee's consent, and by a perfect understanding between them, uses the premises as his own.1

450. In relation to the point in question there is also the following authority: In November, 1769, Alexander Wylly, then residing in the State of Georgia, executed his bond to Greenwood and Higginson, merchants of London, for the sum of £2,108, conditioned to pay £1,054 on or before the 1st of January, 1773;

1 Moss v. Gallimore, Doug. R. 275; 1 T. R. 384.

2 Gould v. Newman, 6 Mass. R 239. 3 Perkins v. Pitts, 11 Mass. R. 125; [Benson v. Stewart, 30 Miss. (1 George,) 49; Martin v. Jackson, 27 Penn. St. 504.] Neither can the assignee of a mortgagor hold possession adverse to the mortgagee, unless the assignee has taken a conveyance without notice. Newman v. Chapman, 2 Rand. (Va.) R. 93. But where a bona fide purchaser from a mortgagor entered without notice of the mortgage (which was not registered till after the commencement of the ejectment suit), and he, and those claiming under him, had been in the continued possession of the premises under such color of title for more than the time limited by the statute, it was held a sufficient adverse possession to bar the mortgagee, or any claiming under him. Baker v. Evans, 2 N. C. Law R. 93. [And the possession, though under an absolute deed, if intended as a mortgage, is not adverse. Babcock v. Wyman, 19 How. (U. S.) 289.]

* Jackson v. Loughhead, 2 Johns. (N. Y.) R. 75. Vid. also 2 Cruise, 108; Keech v. Hall, Doug. R. 21; M Ketcher v. Hall, 18 Johns. (N. Y.) R. 289; [Boyd v. Beck, 29 Ala. 703.]