P. A. Dunn & Co. v. Tillery

Smith, C. J. (After stating the case as above.)' The only question before us is as to the sufficiency of the defence, and whether the defendants are exonerated from their obligation to pay rent. A mortgagor left in possession has an undoubted right to appropriate the land and all the profits arising from its occupancy to his own use, and has a like right to lease to another and take the accruing rent. This right remains until, by some positive act, the mortgagee interferes and claims possession, or that the tenant shall account to him for the profits or for rent; The plaintiffs succeed to all the rights of the mortgagor, and may do whatever he could have done. The defendants’ occupation by the plaintiffs’ election was changed from that of vendee to that of lessee, with the correspondent obligation to pay the stipulated rent therefor. It is true that a vendor (whom a mortgagee very much resembles in his legal relations to the other contracting party) who permits his vendee to go into possession, may resume his possession ; or, on notice given those who are in possession, require rent to be paid to him, as was held in Hook v. Fentress, Phil. Eq., 229; or, if such claim was asserted against a tenant by the real owner, he would be at liberty *500 to show such paramount title in another, by whom he was held liable for the use and occupation of the premises, as a defence or counter claim to the action of the lessor. McKisson v. Mendenhall, 64 N. C., 286. But nothing of the kind exists here. No claim has been made if indeed it could be made by the mortgagee, of the defendants for rent or otherwise. The express obligation to pay rent to the plaintiffs remains in force undisturbed by any conflicting claims from others. Unless this contract can be enforced by the plaintiffs it can be by no one else, and the defendants will have had the gratuitous use of the land under a promise to pay rent, freed from all obligation to do so. The very acquiescence of the mortgagee is an implied assent to the lease, confirmed by his inaction since. The opposition to the plaintiffs’ recovery however is based mainly on their inability. to make title, and thus perform their part of the contract of sale. Their incapacity does exonerate the defendants from making payment of the purchase money, and as was held in Nichols v. Freeman, 11 Ire. 99, is itself a breach of contract for which an action lies. But we do not see how, when the defendants have had undisturbed possession for the year of the leased premises, for which they expressly agreed on the contingency which has occurred to pay a specific rent, they can retain the benefits of their occupation and use of the land, and at the same time escape their .correlative and assumed obligation to pay- We are relieved from any inquiry into details, inasmuch as in the case agreed the parties specify what judgment shall be eqtered up and the relief to be given in case of our holding that the plaintiffs can recover. The judgment below is reversed, and judgment should be entered according to the case agreed, and the cause is remanded to be further proceeded with in the Court below. Error. Reversed.