M'Kirhcer v. Hawley

Spencer, Ch. J. delivered the opinion of the court. The single question in this cause is, whether a mortgagee can distrain for rent, accruing on a lease made by the mortgagor after the.execution of the mortgage, and whilst the mortgagor remained -in possession ? The defendant in error, who was plaintiff in the Court below, has sued for rent accruing on the lease thus made, in virtue of a sale on execution of the mortgagor’s right in the premises; and I do not understand that his right to maintain the suit would be denied, as between these parties, hut for the mortgage, which was anterior to the judgment on which the sale was made to the plaintiff below, and under which mortgage the .goods of the [291] plaintiff in error have been distrained, and sold to pay the rent now in question. The question turns upon this, whether there is such privity of estate, or c'ontract, or right, as-between the lessee of a mortgagor, upon a mortgage executed before the giving the lease, and the mortgagee, as will authorize the latter to distrain for rent. This Court decided, in Jackson v. Fuller, (4 Johns. Rep. 215.) that where a person held under a title derived from the mortgagor, subsequent to the mortgage, that there was no privity of contract or estate between him and the mortgagee ; and that, consequently, he was not entitled to notice to quit. I do not understand, from the points stated by the plaintiff’s counsel, that he insists that any privity exists; his doctrine is, that the mortgagee has an election, either to proceed against the tenant as a trespasser, or to affirm the lease, and proceed, either by an action, or by distress to recover the rent. Great stress has been placed on the case of Moss v. Gallimore and another, (Doug. 279.) in which it was decided, that where a man makes a lease for years, reserving rent, and then mortgages, that the mortgagee, after notice to the tenant of the mortgagor, is entitled to the rent in arrear at the time of the notice, and to the subsequently accruing rent, and has a right of distress, after such notice. In a note to Bacon’s Air. (tit. Mortgage, C.) it is stated, “ that a mortgagor being considered in the nature of a tenant at will, it follows, that, if he makes a lease subsequent to the mortgage, the mortgagee may treat the lessee as a wrongdoer, or not, at his optionand Cro. Jac. 660. and Cro. Car. 303. are referred to in support of that doctrine ; but neither of those cases warrant the position, nor do they relate at all to the relative rights of a mortgagee and a tenant of the mortgagor. Woodfall, in his treatise on the law of landlord and tenant, (174. 286.) lays down the position sanctioned by the case of Moss Gallimore, and constantly marks the distinción, by confining the right of the mortgagee to distrain, where the lease was given anterior to the mortgage. It appears to be an established principle, that a person who has not the292 reversion, cannot distrain of common right. ( Woodfall, 285. ed. 380. Glib. Law of Distress, 28.) After a pretty full consideration of the case, I incline to the opinion, that a mortgagee of premises cannot distrain for rent accruing on a lease given by the mortgagor subsequent to the mortgage. There is no adjudged case which countenances the contrary doctrine, and there are strong reasons against it, arising from the consideration that there is no privity of contract or estate, between such a mortgagee and the tenant. The mere legal ownership of the land, cannot authorize either an action or a distress for the rent. The mortgagor holds, it is true, upon an implied consent and agreement, existing between him and the mortgagee $ and according to the decisions of this Court, is, on that principle, entitled to notice to quit before he can be proceeded against as a trespasser; but it would be going too far, to say, that he might make leases, which the mortgagee might or might not affirm, at his election. The relation between them does not imply a right on the part of the mortgagor to lease. Having already decided that there exists no privity between the mortgagee and one holding under the mortgagor by a conveyance subsequent to the mortgage, we have, in effect, decided the present question ; for it would seem to be an incontestible proposition, that no man can distrain for rent, unless a privity of contract or of estate exists between him and the party of whom rent is claimed. The remedy by distress is a summary process given by the law, enabling the party to do himself justice, in a prompt manner. It will in no case lie, unless an action could be maintained for the rent; and if there be no privity of contract or estate, most certainly an action could not be maintained. Judgment affirmed.