Chap. XXXVII. (iii.) Right to arrears of rent.

Current rents not apportioned.

sation Act, 1890 (x), a tenant, under a tenancy not binding on the mortgagee, is nevertheless entitled to compensation against the mortgagee for crops, improvements, tillages, &c.

A mortgagee is not entitled to arrears of rent which have accrued due up to the time of his taking possession, whether the property was, up to that time, in possession of the mortgagor himself (y), or his trustee in bankruptcy (s), or any other person claiming under him (a). And this rule applies not only to a mortgagee in fee, but also to a mortgagee of a term (b), or of a life estate (c).

Where a mortgagee moves to discharge a receiver, he is entitled to rents received between the notice of motion and the order thereon giving him possession, for he is regarded as in possession from the date of the notice of motion (d).

A mortgagee entering into possession is not disentitled by the Apportionment Act, 1870 (e), from demanding and receiving current rent becoming payable after entry. But he is Warehousing not entitled to so-called rents due to the mortgagors for warehousing goods, though recoverable under statute of distraint and sale of the goods (ƒ).

rents.

Action for

against lessee.

As to mesne profits, the tenant may continue to pay the rent mesne profits to the mortgagor so long as he is allowed by the mortgagee to receive it (g), provided it is rent due, and not a payment by anticipation on account of future rent (h). But if the tenant pay rent to the mortgagor after notice to pay to the mortgagee, he cannot, if compelled to pay it to the mortgagee, recover it from the mortgagor (i).

Actual

possession of mortgagee necessary.

The mortgagee cannot bring an action of trespass for mesne profits against the tenant, or waive the tort and sue in use and occupation, unless he has been in actual possession of the land, or unless the tenant is estopped from denying the possession by a verdict, or has suffered judgment by default in ejectment (k).

Chap.

The mortgagor, after disturbance by the mortgagee, will be liable to his tenant in an action for damages on his covenant for XXXVII. quiet enjoyment (); and the mortgagee will also be liable for (iii.) compensation (m); and the lessee's right to sue the mortgagor Remedy of is not affected by the circumstance of his having obtained from ejected tenant the mortgagee compensation for improvements (n).

If the mortgagee refuses to adopt a lease, or agreement for a lease, made without his consent by the mortgagor, whether or not he proceeds to evict the lessee, yet the lease, being a valid demise of the equity of redemption, will entitle the lessee to redeem the mortgage (o), and will at all events be binding on the mortgagor, and all persons claiming under him.

against mortgagor.

The mortgagee may elect not to eject the lessee, and may Confirmation of leases, &c. confirm the tenancy, or rather establish a new tenancy upon the by mortgagee. same terms (p); and any act of the mortgagee demonstrating an approbation of the lease, such as the receipt of or distress for rent, or notice to quit (2), or the like, will be evidence of a tenancy, and a demand by the mortgagee or his agent, and payment by the tenant of interest of the mortgage instead of rent, will suffice (r).

If the mortgagee encourages the lessee to lay out money on the premises, he will not afterwards be permitted to disavow the tenancy (s); but mere inspection by the mortgagee of the improvements will not amount to acceptance of the lessee as his tenant (t).

created.

The mortgagee does not, by making the lessee his tenant, set Tenancy from up a lease for the term, but only creates a tenancy from year to year to year year (u). So, if the mortgagee asserts his paramount title by giving to a lessee or tenant notice to pay the rents to him, the lessee of the mortgagor, subsequent to the mortgage, may consider himself as tenant from year to year of the mortgagee, and determine his tenancy with the mortgagor, notwithstanding that he has in the meantime paid rent to the mortgagee pursuant to the notice (x).

(1) Costigan v. Hastler, 2 Sch. & L. 160; Howe v. Hunt, 31 Beav. 420. (m) 53 & 54 Vict. c. 57.

(n) Carpenter v. Parker, 3 C. B. N. S. 206.

(0) Tarn v. Turner, 39 Ch. D. 456, C. A.

(p) Keech v. Hall, 1 Doug. 21. (9) Smith v. Eggington, L. R. 9 C. P. 145.

(r) Doe v. Cadwallader, 2 B. & Ad.
473;
Doe v. Hales, 7 Bing. 322.

(s) Keech v. Hall, 1 Doug. 21; Evans
v. Elliott, 1 P. & D. 256.

(t) Doe v. Hughes, 11 Jur. 698.

(u) Doe v. Bucknell, 8 C. & P. 566; Partington v. Woodcock, 5 N. & M. 672. (x) Corbett v. Plowden, 25 Ch, D. 678, C. A.

Chap.

XXXVII. (iii.)

Distress by mortgagee.

New tenancy between mortgagee and tenant of mortgagor.

If the tenant should refuse to pay the rents due at the time. of the notice, and in the absence of any other circumstances from which a tenancy can be inferred, such notice by the mortgagee is not of itself sufficient to make the lessee his tenant, so as to enable him to distrain or sue for the rent afterwards accruing due under the lease (y).

The mortgagee cannot distrain on a tenant of the mortgagor under a lease made after the mortgage, unless the tenant has expressly or impliedly attorned (); and notice by the mortgagee to the tenant of the mortgagor under such a lease does not of itself constitute the relation of tenant to the mortgagee, or entitle the latter to distrain for the subsequent rent (a). A subsequent payment of rent will not act by way of relation back to establish a distress for previous rent (a): there must be an attornment or other evidence of consent by the tenant (b).

A new tenancy may be created between the mortgagee and tenant by payment and acceptance of rent, as rent (c), although mere notice by the mortgagee to the tenant to pay the rents to him, without attornment or assent on the part of the tenant, is insufficient to create a new tenancy (d); and the fact that the tenant remains in possession after such notice does not raise an inference that he has assented to become tenant to the mortgagee (e). But it would seem that a notice by the mortgagee to pay all future rents to him may be treated by the tenant, as against the mortgagor, as an eviction by title paramount (ƒ).

It seems to be open to the tenant to treat the payments made to the mortgagee in consequence of the notice as payments made on the mortgagor's account, and to plead the same accordingly, without denying the mortgagor's title as landlord (g).

If the mortgagee recognize the lessee as his own tenant, or as being in lawful possession of the premises at a given time, it is not competent for him to say afterwards that he was at that time a trespasser (h).

(y) Evans v. Elliott, 9 A. & E. 342; Towerson v. Jackson, (1891) 2 Q. B. 484, C. A.

(z) Evans v. Elliott, sup.; Rogers v. Humphreys, 4 A. & E. 299.

(a) Partington v. Woodcock, 5 N. &
M. 672; Rogers v. Humphreys, sup.;
Evans v. Elliott, sup.

(b) Wheeler v. Branscombe, 5 Q. B.
375; Doe v. Thompson, 9 Q. B. 1037.
(c) See Rogers v. Humphreys, 4 A. &
E. 813, per Lord Denman, Č. J.

(d) Evans v. Elliott, 9 A. & E. 342. And see 6 A. & E. 695.

(e) Towerson v. Jackson, (1891) 2 Q. B. 484.

(f) 2 Bing. N. S. 538.

(g) Johnson v. Jones, 9 A. & E. 809; though in this case the rent was due before the notice.

(h) Birch v. Wright, 1 T. R. 383; Doe v. Hales, 7 Bing. 322. And see Doe v. Olley, 12 A. & E. 481; Doe v. Goodier, 10 Q. B. 957.

In Pope v. Biggs (i), 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 and demand made, on the ground that as the mortgagee might have evicted the tenant, and obtained the rents due in an action for mesne profits, the mortgagee must be entitled to receive them without bringing an ejectment.

But in Evans v. Elliott (k) it was decided that a mortgagee cannot, by the mere fact of giving the mortgagor's tenant a notice, cause him to hold of himself, the mortgagee, and that even a subsequent attornment by the tenant to the mortgagee will not have the effect of setting up his title as landlord by relation.

Where a mortgagee gives notice to tenants, but does not take possession, any loss arising to the mortgagor therefrom will fall on the mortgagee (7); but if the mortgagee, after he has taken possession, refuses to apply for rent, the mortgagor has no remedy in equity; his only remedy is against the mortgagee on taking the accounts (m).

As a tenant cannot dispute his landlord's title, the lease by Lease by mortgagor is the mortgagor after the mortgage will be good until the mort- voidable, not gagee interferes, until which time the mortgagor may receive void. the rent to his own use, and may distrain for it (n), even after the mortgagee has given notice to the tenant to pay, but before he has paid; and the tenant would have had no defence (o); the tenant, however, after such notice, is quite justified in giving up the premises to the mortgagee (p). In Wilton v. Dunn (q), it was held that it was not sufficient for the tenant to show a notice and claim by the mortgagee; he must prove payment; but payment of rent by a tenant to the mortgagee after notice and on compulsion is valid (»).

Nor is the tenancy under the mortgagor affected by an

authority from the mortgagor to the mortgagee to receive the rents, though perhaps such a power may be irrevocable and justify all payments made under it while the mortgage debt continues (s).

After the lessee has been compelled to pay the mortgagee, he still, in defending himself against the mortgagor, must admit the latter's title, and show that it has determined (t); or if the payment were with the mortgagor's consent, the plea might have been rien in arrière (u); but such payment of rents due at the time of the notice must, in an action by the mortgagor, have been and still must be specially pleaded (a). So if the rent has become due, and is not paid to mortgagee or mortgagor, any binding agreement between them for payment of rent to the former must have been, and must be still, specially pleaded by the tenant (y).

But though the tenant will thus be allowed all payments to the mortgagee made under compulsion, or with the assent of the mortgagor, he could not, in an action brought against him by the latter, plead what amounted to nil habuit in tenementis (z), though he might show that the mortgagor's interest had determined by eviction by the mortgagee (a).

Of course a lessee claiming under the mortgagor subsequently to the mortgage may, in answer to an action by the mortgagee, show eviction by title paramount; or, if the lease be prior in date to the mortgage, it would seem that he may either make the same defence of eviction by title paramount, or without showing any eviction, plead that by reason of the paramount title the mortgagor could not transmit any legal title to the mortgagee (b); and notice given by the person having such paramount title to the tenant, to pay the rent to him, is, it seems, evidence to go to a jury of the fact of eviction (c). And if, prior to 3 & 4 Will. IV. c. 74, which abolished fines and

(s) Wheeler v. Branscombe, 5 Q. B. 375.

(t) Alchorne v. Gomme, 2 Bing. 54; Doe v. Edwards, 5 B. & Ad. 1065; Taylor v. Zamira, 6 Taunt. 524; Johnson v. Jones, sup.

(u) Dyer v. Bowley, 2 Bing. 94; Wheeler v. Branscombe, 5 Q. B. 375, 377.

(x) Waddilove v. Barnet, 2 Bing.N.C.

538.

(y) Wheeler v. Branscombe, sup.

(z) Alchorne v. Gomme, 2 Bing. 54. And see Johnson v. Jones, 2 P. & D. 651.

(a) Doe v. Barton, 11 A. & E. 307.

(b) Doe v. Barton, 11 A. & E. 307. This latter ground, although taken in the judgment alone as the ground of defence for the particular defendant (Barton), is questionable, since the case of Gouldsworth v. Knights, 11 M. & W. 337.

(c) Doe v. Barton, sup.