Jones v. . Hill

Rodman, J. (After stating the facts as above.) Under the facts of this case, Hyman must be regarded as a mortgagor, and the plaintiff as a mortgagee, of the lands mentioned in the complaint, Hyman v. Devereux, 63 N. C. 624. If a mortgagor remains in posession after the forfeiture of the property, he remains only by permission of the mort *200 gagee. In snob, case tbe mortgagor bas been sometimes called a tenant at will or sufferance, and sometimes a trespasser ; but be is properly neither ; bis position cannot be more accurately defined than by calling bim a mortgagor in possession, bntbe maybeejectedatanytimebytbemortgagee, without notice, Fuller v. Wadsworth, 2 Ire. 263. The mortgagee is entitled to tbe estate with all tbe crops growing on it, by Buller J. in Birch v. Wright, 1 T. R. 283; Coote on Mortgages 333, 339 ; Liffords case 11 Co. 51; Doe. dem. Fisher v. Giles, 5 Bing. 421, (15 E. C. L. 485); Roby v. Maisey, 8 B. & C. 769, (15 E. C. L. 377); Parsley v. Day, 2 Q. B. 14, (42 E. C. L. 612.) There is no injustice in this, because tbe land, including all its products, is a security for tbe mortgage debt, and to that extent, tbe property of tbe mortgagee. Tbe mortgagor bas no right to make a lease, to tbe prej udice of tbe mortgagee; tbe lease is void if tbe mortgagee elects to bold it so; Coote on Mortgages, ubi. sup.; Keech v. Hall, Dougl. 21; Birch v. Wright, ubi. sup.; Pope v. Biggs, 9 B. & C. 245. (17 E. C. L. 358.) If tbe mortgagor could]lease, he might altogether defeat tbe claim of the mortgagee. By bis purchase on 26 tb August, the plaintiff acquired tbe legal estate, in addition to bis previous rights as mortgage creditor: be purchased tbe land and all tbe crops growing on it. Plyman, if be bad been in possession, would not have been entitled to emblements, neither is bis lessee. In this case, however, tbe plaintiff elected to confirm tbe lease, and therefore be is entitled to no more than tbe reasonable rent, which is all be demands. Coote on Mortgages, 334. If indeed the amount of tbe purchase money overpaid tbe sum due tbe mortgagee, Hyman would be entitled to tbe surplus, and tbe defendant, as tbe assignee of Hyman, would probably be entitled to be subrogated to bis rights, to the amount of tbe rents payable by bim. If tbe defendant shall desbe it in this case, |be will be entitled to have an *201 account of the mortgage debt taken, in order to ascertain whether it has been overpaid. In that case the defendant must amend his pleadings, so as to present the issue, and the executors of Hyman should he made parties, in order that they be bound by the account. The right of the defendant to this account, arises from the fact that the plaintiff unites the double character of mortgage creditor and purchaser; as purchaser alone he would not be affected by the state of the-account. Whether amere creditor without any specific lien, is entitled to the provisional remedy of a seizure of his debtor’s property, upon the allegation that he is about to dispose of it, and whether a landlord is entitled to such remedy for the recovery ■of rent, except as given by the Act concerning Landlord and Tenant, 1868-9, ch. 156, p.355, need not be considered. In this casejthe plaintiff does not claim, either as a mere creditor, ■or as a landlord, but as the owner of the whole crop in specie, and as having a specific property in every part of it. That he does not in fact claim the whole, but only a reasonable •share of it as rent, cannot impair his remedy for that part. Let this opinion be certified. Per Curiam. Judgment affirmed.