is but a tenancy at will(); and although the tenancy be nominally created for a term of years, the same effect of a tenancy at will is created by a power to enter at any time without notice (). Chap. XXXVI. (iii.) interest does It was decided that the mere receipt of interest from the Receipt of mortgagor, or a distress for interest under a power contained in not create the mortgage deed, is not a recognition by the mortgagee that tenancy. the mortgagor or his tenant was at that time in lawful posses sion (m). But this must be distinguished from the case of rent eo nomine, demanded and received, or distrained for, by the agent of the mortgagee, from the tenant of the mortgagor, in payment of interest, which would prevent the tenant from being treated as a trespasser (n). mortgagor. Although the mortgagor is equitable owner of the property, Mortgagee the mortgagee cannot be considered as a trustee for the mort- not trustee for gagor (0), even though the mortgage is in the form of a trust for sale (p); for a trustee is not allowed to deprive his cestui que trust of his possession, but a mortgagee may assume the possession whenever he pleases (7); if there is no agreement to the contrary, equity never interferes to prevent the mortgagee from assuming the possession, but for such purposes will consider the mortgagor a mere tenant at will (r). tenancy at The mortgagor cannot determine the tenancy at will created Determinaby agreement by transferring his interest to another without tion of notice to the mortgagee, so as to affect his right of distress (s); will. and a tenancy at will which existed before the mortgage is not determined by the mortgage (t). The mortgagor is not tenant at will of the mortgagee within Statute of the meaning of the provision in the Statute of Limitations, that Limitations. when any person shall be in possession or receipt of the rents and profits of any land, or in receipt of any rent as tenant at will, the right of the person entitled subject thereto, or of the person through whom he claims, to make an entry or distress, or to bring an action, shall be deemed to have first accrued at (k) Doe v. Cox, 11 Q. B. 122. (1) Morton v. Woods, L. R. 4 Q. B. 294. (m) Doe v. Cadwallader, 2 B. & Ad. 473; Scobie v. Collins, (1895) 1 Q. B. 375. (n) Doe v. Hales, 7 Bing. 322; Doe v. Olley, 12 A. & E. 481. (0) Dobson v. Land, 8 Ha. 216. (s) Pinhorn v. Souster, 8 Exch. 763. Chap. XXXVI. (iii.) Delivery of possession Courts Act. the determination, or at the expiration of one year next after the commencement of such tenancy (u). But where the mortgage has been paid off without any reconveyance the mortgagor is a tenant at will under sect. 7 (x). Unless a strict tenancy is created between mortgagee and under County mortgagor in possession by payment of rent or otherwise, there is no jurisdiction, under sect. 138 of the County Courts Act (y), to order delivery of the mortgaged property to the mortgagee (2). Mortgagor holding over after default is tenant at sufferance or trespasser. Effect of transfer of mortgage. Attornment clauses. iv. When the Mortgagor is Tenant at Sufferance.-If a mortgagor in possession under an express proviso that he shall continue in possession till default hold over after default without any new agreement, he will not necessarily be deemed to be more than a tenant at sufferance of the mortgagee (a). “A tenant at sufferance is where a man cometh to the possession first lawfully and holdeth over" (b). If the mortgagor has made default in payment of the principal and interest on the day appointed by the mortgage deed, generally six months from the date thereof, the operation of the proviso ceases, and thereupon the mortgagor, like any other tenant at sufferance, becomes liable to eviction by the mortgagee without notice or demand of possession (c), and will not be entitled to emblements (d). He may, at the option of the mortgagee, be treated as tenant or trespasser (e). If the mortgage is transferred to a third person, the mortgagor becomes a mere tenant by sufferance of the transferee, who might formerly bring ejectment against the tenants of the mortgagor without notice to quit (f). But now, under the Tenants' Compensation Act, 1890 (g), the tenant has a right to six months' notice. v.-Attornment Clauses.-In order to create the relation of landlord and tenant between the mortgagor and mortgagee, (y) 51 & 52 Vict. c. 43. (z) Jones v. Owen, 18 L. J. Q. B. 8; Re Banks, 15 Jur. 657 (cases decided under sect. 122 of the stat. 9 & 10 Vict. c. 95). (a) Powseley v. Blackman, Cro. Jac. 659; Smartle v. Williams, 1 Salk. 245; Thunder v. Belcher, 3 East, 449; Doe d. Roby v. Maisey, 8 B. & Cr. 767; Scobie v. Collins, (1895) 1 Q. B. 375. (c) Doe v. Giles, 5 Bing. 421. See further as to mortgagee in possession, post, Chap. XLII., Sect. II. (d) Bagnall v. Villar, 12 Ch. D. 812. (e) Doe d. Robey v. Maisey, 8 B. & Cr. 767. (f) Thunder v. Belcher, 3 East, 449; Howe v. Hunt, 31 Beav. 420. (9) 53 & 54 Vict. c. 57. clauses of attornment by the mortgagor to the mortgagee are sometimes inserted in mortgages, where the mortgagor is himself in occupation of the mortgaged property; but it makes no difference to the rights of the mortgagee under the clause if the property is afterwards let by the mortgagor to an undertenant (h). Attornment clauses have in great measure fallen into disuse in consequence of the dicta of James and Bramwell, L. JJ., in Re Stockton Iron Furnace Co. (i), that the effect of such clauses is to render mortgagees liable as mortgagees in possession to account as against any second mortgagees or incumbrancers for rent received, or which but for their wilful default they might have received. The dicta were adopted by Jessel, M. R., in Exp. Punnett (k); but Bacon, V.-C., in Stanley v. Grundy (1), refused to follow them. Having regard to this risk, it has very generally been considered by conveyancers that it is not advisable to insert these clauses in mortgage deeds. Moreover, by recent statutory enactments, mortgagees have now been deprived of a great advantage formerly attaching to attornment clauses, namely, that by creating a tenancy such clauses enabled the mortgagee to distrain for the rent reserved thereby, thus affording him an easy and expeditious mode of enforcing the payment of his interest instead of being obliged to enter into actual possession of the property. Chap. XXXVI. (v.) Avoidance of lauses by attornment Bills of Sale Acts as re The Bills of Sale Act, 1878 (m), enacts that attornments and other instruments giving powers of distress by way of security, shall be deemed bills of sale, within the meaning of the Act, of any personal chattels which may be seized thereunder, and gards power accordingly will be void as regards such property, unless regis- of distress. tered in accordance with the requirements of the Act. And by the Bills of Sale Act, 1882 (n), every bill of sale given by way of security is required to have a schedule of the personal chattels comprised therein, and is void, except as against the grantor, in respect of any chattels not specifically described in the schedule; but it has been held that attornments need not be in accordance with the form prescribed by the Act (0). Chap. XXXVI. (v.) Validity of attornment clauses in The effect of the above enactments is to render an attornment clause in a mortgage wholly inoperative as regards the power of distress, whether such power is expressly given or is relied on as incident to the demise for the purpose of enabling the mortgagee to seize personal chattels not assigned to him by the mortgage (p), unless the mortgagee has actually entered into possession of the land, and, being in possession, has demised it to the mortgagor at a fair and reasonable rent (g). But, inasmuch as the Bills of Sale Acts do not include within their scope and operation real property, it has been held that other respects. attornment clauses, though invalid so far as they purport to Attornment heir. give power to distrain personal chattels, are of effect, in other respects, in creating the relation of landlord and tenant between the parties, e.g., so as to enable the mortgagee to recover the land by summary process under Ord. III. r. 6, and Ord. XIV. r. 1 (r). There is, however, another difficulty. Where a bill of sale is void under sect. 9 of the Act of 1882, it is void not only as to the charge, but also as to the covenant for payment (s). Although this would not affect the mortgage of the land, it would be better, in order to avoid any question as to its effect on the covenant for payment, that the attornment should be made by a separate instrument (f), which should be under seal (u). Where a mortgage contained an attornment clause in the by mortgagor will not bind usual form, the mortgagor died, and his heir occupied and paid interest it was held that the attornment clause created a mere tenancy at will which came to an end at the mortgagor's death, and that the payment of interest by the heir was not referable to payment of rent, he not having attorned, and therefore created no new tenancy (r). If the heir had himself attorned, he would have become tenant at will (y). Attornment by mortgagor binds him Where the mortgagor had attorned to the mortgagee at a rent, and after the death of the mortgagee remained in possesafter death of sion and paid rent to his devisees, the subsequent occupation, coupled with the provisions of the deed, constituted the relation mortgagee. (p) Re Willis, Exp. Kennedy, 21 Q. B. D. 384, C. A. See Green v. Marsh, sup. (7) See the saving proviso at the end of sect. 6 of the Act of 1878. (r) Daubuz v. Lavington, 13 Q. B. D. 347. See Hall v. Comfort, 18 Q. B. D. 11; Mumford v. Collier, 25 Q. B. D. 279; Kemp v. Lester, inf. (s) Davies v. Rees, 17 Q. B. D. 408. (t) Key & Elph. (7th ed.) vol. ii. 54. (u) Hood & Challis (6th ed.), 75. (x) Scobie v. Collins, (1895) 1 Q. B. 375. (y) West v. Fritche, 3 Exch. 216. of landlord and tenant, though receipts were given as for interest, and the deed was executed only by the mortgagor (s). Chap. XXXVI. (v.) An attornment by a mortgagor to a second mortgagee is valid although there was an attornment by him to the prior Successive mortgagee (a). attornments. If a receiver is appointed, the attornment should be to him; Attornment and if he be appointed by a separate deed, the attornment to receiver. should be by that deed (b). The tenancy created should be a tenancy from year to year, Term of tenancy. and not a tenancy at will only, as in the latter case it would be defeasible by the death of either party (c); but even where the tenancy is at will, it is not determined by the alienation of the mortgagor without notice to the mortgagee (d); and the mortgagor is tenant both in law and equity (e). A tenancy under the attornment clause from year to year is not inconsistent with a power to enter and determine the tenancy (f). So, where under the mortgage deed the mortgagor became tenant to the mortgagee at a rent, but the mortgagee had a power of immediate entry on default in payment, it was held that the mortgagee might, on default made, eject the mortgagor without notice to quit, or demand of payment (g), and that a distress for rent under the deed did not prevent the mortgagee from treating the mortgagor as a trespasser in respect of a subsequent default (h). And in such a case, the mortgagee may specially indorse the writ under R. S. C., Ord. III. r. 6 (f), and apply for summary judgment under Ord. XIV. (i). of rent in The provision consists of an attornment by the mortgagor Reservation to the mortgagee at a rent usually the same in amount, and attornment payable on the same half-yearly days, as the interest, with a clauses. proviso enabling the mortgagee to enter without notice and determine the tenancy (k). Upon assignment by the mortgagee, the power of distress for the arrears of interest is gone (1). (f) Re Threlfall, 16 Ch. D. 274, C. A. (g) Doe v. Tom, 4 Q. B. 615; Doe v. Olley, 12 A. & E. 481. But see Clowes v. Hughes, L. R. 5 Ex. 160. (h) Doe v. Olley, sup. (i) Kemp v. Lester, (1896) 2 Q. B. 162, C. A. (k) Dav. Conv. vol. ii. pt. ii. p. 95. (1) Brown v. Metropolitan, &c. Insurance Soc., 1 E. & E. 832; Re Davis, 22 Q. B. D. 193. |