A right of entry in a lease cannot be reserved to a stranger, CHAP. XXXVII. and, therefore, if it appears on the face of the lease that the Right of legal estate is in the mortgagee or a trustee for him, and entry. the right of entry is reserved to the mortgagor, it will be void (c). A right of re-entry, however, being reserved to them, or either of them, in such joint lease, enures to the benefit of the person with the legal estate for the time being, to the mortgagee while his interest lasts, and to the mortgagor when his interest commences, but they cannot sue on a joint demise (d). A joint lease by mortgagee and mortgagor operates as a lease Operation of by the mortgagee, and an equitable confirmation by the mort- joint lease. gagor, 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 (e). Where a mortgagee of leaseholds joins with the mortgagor Power of sale. 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 (ƒ). In an action of trespass against assignees in bankruptcy of Underlease. the mortgagor, a replication that the bankrupt before his bankruptcy made an underlease by way of mortgage, and that before the bankruptcy it was agreed between mortgagor, mortgagee, and the plaintiff that the latter should have an underlease from the two former, under which the plaintiff entered, &c., was not objectionable on the ground of duplicity in pleading (g). iii.-Leases, &c. improperly granted by Mortgagor after the Leases by Mortgage.-Independently of sect. 18 of the Conveyancing and not generally mortgagor do Law of Property Act, 1881 (1), which applies only in case of bind morta 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 that behalf, or the concurrence of the (c) Doe v. Lawrence, 4 Taunt. 23; Doe v. Adams, 2 Cr. & J. 232; Saunders v. Merryweather, 3 H. & C. 902. (d) Doe v. Adams, 2 Cr. & J. 232. See Doe v. Lawrence, 4 Taunt. 23. (e) Smith v. Pocklington, 7 Sc. 69. gagee. CHAP. XXXVII. mortgagee, create a lease or tenancy which will bind the mortgagee, and if he purports to create such a lease or tenancy, the mortgagee or his transferee may proceed to eject the lessee or tenant without notice (i). Power for mortgagor to lease. Specific performance. Notice to quit. Right to emblements. As it was often one of the terms of the arrangement for a loan that the mortgagor should be able to grant leases independently 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. The mortgagor not being able by himself to make a valid lease 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 (k). 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 (7). Notice to quit is not necessary in an action against a tenant subsequent to the mortgage, though the mortgagee covenants not to take possession without twelve months' notice (m); and after default in payment of the mortgage money, the mortgagee may treat such tenant as a trespasser (n). On the eviction of the lessee he is not entitled to emblements; the point was started in Keech v. Hall (o), but did not call for 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. It may, however, be considered that, both on legal and equitable principles, the lessee will not be entitled to emblements, for at law he is evicted by title paramount, and the law makes a distinction as to the right to emblements, between tenants who have particular estates that CHAP. XXXVII. are uncertain, defeasible by the act of the parties to the original contract, or by the act of God, and those who have particular estates defeasible by a right paramount; for, in the latter case (p), "he that hath the right paramount shall have the emblements; for although quoad actionem the law will not by a fiction make the lessee who comes in by title liable to punishment as a trespasser, yet quoad proprietatem, the regress of the disseisee revests the property as well for the emblements as for the freehold itself, and equally against the feoffee or lessee of the disseisor, as against the disseisor himself. For the rule and reason of the law is, that after the regress of the disseisee, the law adjudges that the freehold has continued in him which rule and reason extends as well to the emblements as to the freehold, and although the act of the disseisor may alter a man's action, yet his act cannot take away his action, property, or right" (7). Nor if the tenancy determines by the act of the lessee, will he be entitled to emblements ("); and, therefore, it was decided that if a lease be granted subject to a condition of re-entry on bankruptcy, insolvency, or by the lessee incurring a debt on which judgment shall be entered up, and the lessor re-enter for condition broken, the latter will have a right to the emblements (8). A mortgagee is not entitled to arrears of rent which have Right to araccrued due up to the time of his taking possession, whether the rears of rent. property was, up to that time, in possession of the mortgagor himself (t), or his trustee in bankruptcy (u), or any other person claiming under him (x). And this rule applies not only to a mortgagee in fee, but also to a mortgage of a term (y), or of a life estate (). A mortgagee entering into possession is not disentitled by Current rents the Apportionment Act, 1870 (a), from demanding and receiving current rent becoming payable after entry (6). But he is (p) Co. Lit. 55 b. (g) Lifford's Case, 11 Rep. 46, 51. 470. (s) Davis v. Eyton, 7 Bing. 154. (t) Drummond v. Duke of St. Albans, 5 Ves. 438; Higgins v. York Buildings Co., 2 Atk. 106. (u) Exp. Wilson, 2 V. & B. 252. (x) Hall v. Lord Bexley, 20 Beav. 127; Flight v. Camac, 25 L. J. (N. S.) Ch. 654. (y) Gresley v. Adderley, 1 Swanst. 573. (z) Coleman v. Duke of St. Albans, 3 Ves. 25. (a) 33 & 34 Vict. c. 35. (b) Anderson v. Butler's Wharf Co., 48 L. J. Ch. 824. not apportioned. CHAP. XXXVII. not entitled to so-called rents due to the mortgagors for wareWarehousing housing goods, though recoverable under statute of distraint and sale of the goods (e). rents. Action for mesne profits As to mesne profits, the remedy is by an action, formerly the against lessee. action of trespass vi et armis, and in this respect, a distinction is taken between a disseisor and one who comes in under him by title (d); for if a man were disseised, and the disseisor, during the disseisin, cut down the trees, or grass, or the corn growing upon the land, and afterwards the disseisee re-entered, the disseisee had an action of trespass against him vi et armis for the trees, grass, corn, &c.; for after the regress, the law, as to the disseisor and his servants, supposes the freehold always continued in the disseisee. But if the disseisor made a feoffment in fee, gift in tail, lease for life or years, and afterwards the disseisee re-entered, he had not trespass vi et armis against those who came in by title, for this fiction of the law, that the freehold continued always in the disseisee, had not relation to make him who came in by a title a wrong-doer vi et armis, because in fictione juris semper æquitas existit. But in such case, the disseisee might recover all the mesne profits against the disseisor. Now it might be thought that the lessee who came in under the mortgagor in possession was within the rule, and consequently not liable to an action for mesne profits; though according to Pope v. Biggs (e), the lessee was liable to such an action on ejectment by the mortgagee for rents due at the time when notice of the mortgage was given and not then paid over to the mortgagee; but payments by the tenant to his landlord, the mortgagor, before the rent is due, are not protected (ƒ). 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 (g). Remedy of The mortgagor, after disturbance by the mortgagee, will be ejected tenant liable to his tenant in an action for damages on his covenant for against mortgagor. quiet enjoyment (h); and the lessee's right to sue is not affected (c) Anderson v. Butler's Wharf Co., (d) Lifford's Case, 11 Rep. 46, 51. (f) De Nicholls v. Saunders, L. R. 7 C. P. 132. (g) Turner v. Cameron's Coalbrook Steam Co., 5 Exch. 932; Litchfield v. Ready, 5 Exch. 939. (h) Costigan v. Hastler, 2 Sch. & L. 160; Howe v. Hunt, 31 Beav. 420. by the circumstance of his having obtained from the mortgagee CHAP. XXXVII. compensation for improvements (i). 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 (j), and will at all events be binding on the mortgagor, and all persons claiming under him. by mortgagee. The mortgagee may elect not to eject the lessee, and may Confirmation confirm the tenancy, or rather establish a new tenancy upon the of leases, &c. same terms (); 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 (1), 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 (m). If the mortgagee encourages the lessee to lay out money on the premises, he will not afterwards be permitted to disavow the tenancy (n); but mere inspection by the mortgagee of the improvements will not amount to acceptance of the lessee as his tenant (o). 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 (p). 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 (q). If the tenant should refuse to pay the rents due at the time Distress by of the notice (r), and in the absence of any other circumstances mortgagee. from which a tenancy can be inferred, such notice by the mortgagee is not of itself sufficient to make the lessee his (i) Carpenter v. Parker, 3 C. B. N. S. 206. (j) Tarn v. Turner, 39 Ch. D. 456, C. A. (k) Keech v. Hall, Doug. 21. (1) Smith v. Eggington, L. R. 9 C. P. 145. (m) Doe v. Cadwallader, 2 B. & Ad. 473; Doe v. Hales, 7 Bing. 322. (n) Keech v. Hall, 1 Doug. 21; Evans v. Elliott, 1 P. & D. 256. (0) Doe v. Hughes, 11 Jur. 698. (r) In the Law Magazine for Novem- |