Jackson ex dem. Barclay v. Hopkins

Spencer, Ch. J. delivered the opinion of the Court. The power of attorney from Barclay to Cole, does not come within the provisions of the statute. (1 JV. R. L. 369.) It is not a deed, conveyance, or writing of, or concerning any lands, tenements, or real estate, and, therefore, was not entitled to be read on the acknowledgment of the party; and that was the only proof of its execution. Was the defendant entitled to notice to quit, prior to the commencement of the suit ? We think, that he was entitled to notice. It has repeatedly been decided in this Court, that as between the mortgagor and the mortgagee, the former is to be regarded as a tenant at will by implication, and is entitled to notice, by which is meant six months notice to quit. Where a mortgage is given to secure a debt, and the mortgagor is left in possession, we have considered that there existed a tacit and implied agreement, that the mortgagor should continue to hold possession. His possession then, being a lawful one, he cannot, and ought not to be treated as a trespasser, and subjected, at once, to an ejectment. But where the mortgagor sells the mortgaged premises absolutely, the purchaser from him is not entitled to this notice, because the sale itself is an act of disloyalty. There must, undoubtedly, be a privity of contract or estate, between the lessor and the tenant, to require notice to quit, and here such privity existed. The mere act of the mortgagee, in assigning the mortgage, did not alter the condition of the defendant’s tenancy. The objection to the want of notice, was not waived by an attempt to show that the mortgage was paid. Judgment of nonsuit.(a) Footnotes [(a)] Vide 2 John. Rep. 75. 3 Johns. Rep. 417. 4 Johns. Rep. 186. 215