(i.) law, having relation back to the time of the grant, and it follows Chap. that all the rents due from the tenant at the time of the notice, XXXVII. and not actually paid over to the mortgagor (h), and all subsequent rent, belong of right to the mortgagee, who may distrain or sue for them (i), or if the tenant holds from year to year, or under an agreement, may recover them in an action for use and occupation (k); and that, too, though the mortgagor has, after the mortgage, altered the property and raised the rent (7). The mortgagee, although the assignee of the reversion, cannot Distress by distrain or sue for rent accrued, or for breaches of covenant, prior to the assignment (m). If the assignment include in terms the previous arrears, still the mortgagee could not distrain (n), although he could recover the arrears like any other choses in action assigned to him (0). mortgagee. tenancy. When a tenant under a parol contract assigns his interest, but Parol the assignee is not accepted by the mortgagor, a subsequent mortgagee cannot sue the tenant, parol contracts not being incident to the reversion (p). If the land, at the time of the mortgage, be in the occupation Notice to of a tenant from year to year, he will be entitled to the usual quit. notice to quit (q). at will. A tenancy at will is determined by a mortgage of the premises Tenancy by the landlord, such mortgage being brought to the knowledge of the tenant (r). If the tenant remains in possession a new tenancy will be created by estoppel ($). A mortgagee is not liable to affirmative covenants not running Liability of with the land, although he has notice (†). mortgagee on Covenants. Formerly, serious inconveniences attended the position of a Anomalous mortgagor who was allowed to remain in possession of the mort- position of mortgagor in gage lands as regards his remedies for enforcing payment of rent possession against persons holding under leases and tenancies subsisting at Judicature the date of the mortgage. Thus, the mortgagor, having con- Act. (h) See 4 Anne, c. 16, ss. 9, 10. (i) Moss v. Gallimore, 1 Doug. 279; Rogers v. Humphreys, 4 A. & E. 299. (k) Birch v. Wright, 1 T. R. 378; Rawson v. Eicke, 7 A. & E. 451; Exp. Hankey, 1 M. & McA. 247. (1) Burrows v. Gradin, 12 L. J. Q. B. 333; 1 Dowl. & L. 313. (m) Flight v. Bentley, 7 Sim. 149; Hunt v. Remnant, 9 Exch. 635; Johnson v. St. Peters, 4 A. & E. 520; Martin v. Williams, 1 H. & N. 817. before the Chap. veyed away the legal estate, could not sue the tenant in ejectXXXVII. ment (u), and he could only distrain by virtue of an implied authority from the mortgagee, which, apparently, the latter could at any time determine by notice (x). (i.) Powers of mortgagor under the Judicature Act. Suits for possession of land, &c. by mortgagors. Concurrence of mortgagor and mortgagee generally necessary. Some of the difficulties of the mortgagor, whilst he was allowed to remain in possession by the mortgagee, have been removed by sect. 25, sub-sect. (5), of the Judicature Act, 1873 (); by which it is thus enacted: "A mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land, as to which no notice of his intention to take possession or to enter into the receipt of the rents and profits thereof shall have been given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with the other person." Under the Act, until notice is given by the mortgagee, no action can be brought by him on the matters referred to in this sub-section; otherwise the same causes of action would vest in both the mortgagor and mortgagee at the same time. A mortgagor may, until such notice is given, bring an action for an injunction in his own name to prevent a breach of a restrictive covenant by a tenant without making the mortgagee. a party, unless his security is likely to be affected (≈). But a mortgagor entitled to the possession of land subject to a lease made before the Conveyancing Act, cannot bring an action to recover possession on a forfeiture for breach of covenant in the lease, although the mortgagee is joined as plaintiff, such mortgagee not having given notice to the lessee under the Conveyancing Act, 1881, s. 14 (a). ii.-Leases granted by Mortgagors and Mortgagees jointly.The concurrence of both the mortgagor and mortgagee is required for the demise of lands in mortgage, unless the lease is granted by the mortgagor alone in exercise of an express power of leasing contained in the mortgage, or in exercise of the statutory powers of leasing hereafter to be considered (b). (u) Marriott v. Edwards, 5 B. & Ad. (x) Trent v. Hunt, 9 Exch. 14; Snell (z) Fairclough v. Marshall, 4 Ex. D. 37. (a) Matthews v. Usher, (1900) 2 Q. B. 535. (b) Post, p. 705. Chap. covenants gross. If a mortgagor, who has parted with the legal estate in the land, and who has consequently an equity of redemption only, XXXVII. joins with his mortgagee in a lease of the premises, and the (ii.) lessee enters into covenants with the mortgagor and his assigns, Lessee's these covenants, being collateral to the land, will neither descend with mortat common law to the heir of the mortgagor, nor pass to an gagor are in assignee of the mortgagee under 32 Hen. VIII. c. 34, but will be covenants in gross, on which actions must be brought in the name of the mortgagor or his personal representatives. This point was decided in Webb v. Russell (c), where it was held that where a covenant is made with the mortgagor only, and therefore in contemplation of law made with a stranger to the land, the benefit of the covenant did not run with the land. But as in contemplation of equity a mortgagor is the true owner of the land, a covenant clearly made for the benefit of the land with the mortgagor will be regarded in equity as annexed to and running with the land (d). For the reason that the covenants are in gross, the mortgagor, though the reversion is extinguished, may sue the lessee (e). Conversely, if the mortgagor enters into the lessor's covenant Covenant for quiet enjoyfor quiet enjoyment, &c., then, inasmuch as the legal estate is ment by in the mortgagee, such covenants are covenants in gross only, mortgagor. and do not run with the land so as to bind the legal reversion. A covenant for quiet enjoyment from both lessors would, in the absence of any express covenant, be implied (f); but an express covenant by the mortgagor excludes such implication (g). lessee's cove Where, therefore, a lease is made by a mortgagee and mort- With whom gagor, the lessee's covenants should be made with the mortgagee nants should as the owner for the time being of the legal estate; and when be made. the mortgage is paid off and the estate is reconveyed to the mortgagor, the right to sue on such of the covenants as run with the land will pass to the mortgagor as incident to the reversion. On a demise by the mortgagee with the concurrence of the Effect of mortgagor, a covenant entered into by the tenant with them several coveboth severally to pay rent to the mortgagee until payment of mortgagor the mortgage debts, and then to the mortgagor, is a covenant (c) Webb v. Russell, 3 T. R. 393; cf. Muller v. Trafford, (1901) 1 Ch. 54. (d) Rogers v. Hosegood, (1900) 2 Ch. 388, C. A. (e) Stokes v. Russell, 3 T. R. 678; Thwaites v. McDonough, 2 Ir. Eq. R. (f) Coleman v. Sherwin, 1 Salk. 137. and mort gagee. Leases by mortgagor do bind mort running with the land until the mortgage is discharged, and then becomes a covenant in gross; and during the continuance of the mortgage, it was held that the action was properly brought by the mortgagee alone, and that the payment of the mortgage money was a condition subsequent operating in defeasance of the covenant with the mortgagee, and must be pleaded (h); but in other cases (i) it was held that the action should be brought in the joint names. So, also, in leases by mortgagors and mortgagees, the rent should be reserved to the mortgagee, or generally, the effect of which will be that the benefit of such reservation will, on reconveyance, pass with the estate to the mortgagor. A right of entry in a lease could not before the Conveyancing Act, 1881, be reserved to a stranger, and, therefore, if it appeared on the face of the lease that the legal estate was in the mortgagee or a trustee for him, and the right of entry was reserved to the mortgagor, it was void (k). A joint lease by mortgagee and mortgagor operates as a lease by the mortgagee, and an equitable confirmation by the mortgagor, who is in law a stranger to the estate; so a covenant by the mortgagor cannot be implied as incident to the demise, and he cannot be sued jointly with the mortgagee (7). Where a mortgagee of leaseholds joins with the mortgagor in leasing part of the premises, although for the residue of the term, and the rent and power of re-entry is reserved to the mortgagor, but it is provided that the rights of the mortgagee on the entirety of the estate are to remain unaffected, the mortgagee will in equity be entitled to the rent, but he will not be allowed to defeat the lease by his power of sale (m). iii.-Leases, &c. improperly granted by Mortgagor after the not generally Mortgage.—Independently of sect. 18 of the Conveyancing Act, 1881 (n), which applies only in case of a mortgage made after the commencement of this Act, a mortgagor cannot, after the date of the mortgage, and in the absence of an express power in gagee. (h) Harrold v. Whitaker, 11 Q. B. 147, 163. (i) Wakefield v. Brown, 9 Q. B. 209; Magnay v. Edwards, 13 C. B. 479. See as to these cases 1 Sm. L. C. (10th ed.) 70, 71. (k) Doe v. Lawrence, 4 Taunt. 23; Doe v. Adams, 2 Cr. & J. 232; Saunders v. Merryweather, 3 H. & C. 902. (1) Smith v. Pocklington, 7 Sc. 69. (m) Edwards v. Jones, 1 Coll. 247. (n) 44 & 45 Vict. c. 41, s. 18, set out post, p. 705. that behalf, or the concurrence of the mortgagee, create a Chap. lease or tenancy which will bind the mortgagee, and if he pur- XXXVII. ports to create such a lease or tenancy, the mortgagee or his (iii.) transferee may proceed to eject the lessee or tenant (0). to lease. As it was often one of the terms of the arrangement for a Power for loan that the mortgagor should be able to grant leases indepen- mortgagor dently of the mortgagee, an express power of leasing was frequently given to the mortgagor by the mortgage deed. The validity of a lease so granted will, of course, depend upon its having been made in strict compliance with the terms of the power. formance. The mortgagor not being able by himself to make a valid Specific perlease in the absence of an express power, it was held that, in order to enforce specific performance of an agreement for a lease, he must have obtained a prior reconveyance from the mortgagee, or procured the latter to concur in the lease (p). In that case, it seems to have been considered that the tenant could not, under an agreement for a lease, compel the mortgagor to redeem for the purpose of granting a valid lease, on the principle that specific performance will not be decreed where it is unreasonable to do so (q). Notice to quit was not necessary in an action against a tenant Notice to subsequent to the mortgage, though the mortgagee covenanted quit. not to take possession without twelve months' notice (»); and after default in payment of the mortgage money, the mortgagee might treat such a tenant as a trespasser (s). But now, under the Tenants Compensation Act, 1890, an agricultural or allotment tenant is entitled to six months' notice. And if threatened with eviction, he has the right to redeem (†). On the eviction of the lessee he was not entitled to emblements; Right to the point was raised in Keech v. Hall (u), but did not call for emblements. a decision, the Court only remarking that the right to emblements would be no bar to the mortgagee's recovering in ejectment; it would only give the lessee a right of ingress and egress to take the crops. But now, under the Tenants Compen (0) Doe v. Maisey, 8 B. & Cr. 767; Gibbs v. Cruikshank, L. R. 8 C. P. 454. (p) Costigan v. Hastler, 2 Sch. & L. 160. (q) See Watson v. Marston, 4 De G. M. & G. 230, 239. Doe v. Davies, 7 Exch. 89. (t) Tarn v. Turner, 39 Ch. D. 456. |