Farris & McCurdy v. Houston

BRICKELL, C. J. — The rule is well settled, and is not questioned, that a tenant can not dispute the title of his landlord, nor set up a paramount title in himself, or in a stranger, to defeat any action the landlord may institute for the recovery of rent, or, when the term has expired, to regain possession of the premises. There are various exceptions to, and qualifications of the rule, which are of as much importance as the rule itself, and which must be observed in the administration of'justice between landlord and tenant. A plain mistake of facts constitutes one of the exceptions. The tenant may show that he at [168] torned to the landlord, or accepted a lease from him, under mistake, and in ignorance of the true state of the title, and that the title was in himself, or out of the lessor. — 2 Green!. Ev. § 305 ; 2 Smith’s Lead. Cases, 752; Taylor on Land. & Tenant, §§. 707-8. Eraud, or imposition, or undue advantage, the same authorities show, is another exception to the rule: whenever, by the fraud, or misrepresentation of the lessor, the lessee is induced to accept the lease, he may impeach the title of the lessor. The estoppel operates only to preclude the tenant from disputing the title of the landlord at the time when the lease was made, and possession given; but not from showing that the title which the landlord then had was defeasible, or limited in its nature, and has since been defeated, or has expired by its own limitation. — 2 Smith’s Lead. Cases, 752. Hence, evidence that the landlord has assigned the reversion, and that the tenant has attorned to the assignee; or that, under a judgment and execution, the reversion has been bought in by the tenant, or by a third person, to whom he subsequently attorns to avoid eviction, will make a good defense to an action by the landlord for the recovery of rent, or of possession. — Randolph v. Carlton, 8 Ala. 606; Pope v. Harkins, 16 Ala. 321; English v. Key, 39 Ala. 131; Otis v. McMillan, 70 Ala. 46. In these cases, the tenant does not dispute the title of the landlord — does not deny that, at the time of the demise, he had the right to make it; but avers that the title then existing has expired. In Randolph v. Carlton, supra, the court said : “ By receiving possession from another under a lease, the tenant impliedly admits that the lessor had such title as authorizes him to dispose of the premises; but he can not be held to affirm any thing in respect to its continuance; consequently, it is allowable for him to show that the title has expired, or been extinguished by operation of law.” ' The point of contention in this case is, whether the title of the lessor, existing at the time of the lease under which the lessees entered into possession, has expired, or been extinguished. We do not deem it necessary to inquire, whether, if the title of the lessor was derived wholly from the conveyance of the lands to her by the devisee, Mrs. Simonton, the tenants having assumed the relation of administrators of the testator, subsequently to the lease, and in that relation having the legal right to the possession, and to intercept the rents and profits, would be heard to gainsay the title of the lessor. It may be true, as was said upon this point, in another case between these parties, that “ their legal metamorphosis, from mere tenants to administrators, was their own act, and renders none the less necessary the surrender of their possession to the plaintiff, be [169] fore they can, in good faith, raise the question as to the superiority of their newly acquired title.”- — Houston v. Farris & McCurdy, 71 Ala. 573. It was not only under the conveyance from the devisee, but under a mortgage executed by the testator, the law-day of which had passed, that the lessor had and claimed possession, when the lease was made and the tenants entered. Whatever may be the theory of a mortgage of lands elsewhere recognized, it is settled in this State, by a line of decisions which have become essential to the safety of titles, that it is more than a security for a debt, or a mere chattel interest. “It creates a direct, immediate estate in lands; as against the mortgagor, and those claiming in his right, afee simple, unless otherwise expressly limited. The estate is conditional — annexed to the fee is a condition which may defeat it. The mortgagee, if in the conveyance there is not a reservation of possession to the mortgagor, until default in the performance of the condition, has the immediate right of entry, and may eject the mortgagor or his Tenants. If the mortgagor is permitted to remain in possession, he is the mere tenant at will of the mortgagee. After the law-day, and default in the performance of the condition, at law, the estate is absolutely vested in the' mortgagee —the estate is freed from the condition annexed to it. Nothing remains in the mortgagor but the equity of redemption, of which courts of law take no notice.”— Welsh v. Phillips, 54 Ala. 314; Paulling v. Barron, 32 Ala. 11; Barker v. Bell, 37 Ala. 358; Slaughter v. Swift, 67 Ala. 494; Toomer v. Randolph, 60 Ala. 356. The payment of rent to a mortgagee who is in possession, or to whom the tenant has attorned to avoid eviction, is an extinguishment of the rent, relieving the tenant from liability to the mortgagor, thou-gh under him the tenant may have entered originally. — 1 Smith’s Lead. Cases, 938. The rents and profits a mortgagee in possession may receive, a court of equity will apply, when' the mortgagor claims redemption, to the payment of the mortgage debt. The law does not make the application ; for, at law, the rents and profits accrue to the mortgagee, as the owner of the legal estate. It is only in equity the application is made, and then, as an equitable set-off, and as an incident to the right of redemption. Toomer v. Randolph, 60 Ala. 358. At law, there can be no inquiry, to defeat the legal estate of the mortgagee, into the existence, or payment, or extinguishment of the mortgage debt. — Slaughter v. Swift, 67 Ala. 494. The title of the lessor, derived from the mortgage, in the contemplation of a court of law, has not expired, or been extinguished. It remains, as it- existed when the tenants accepted the lease, and entered into possession, thereby admitting its validity, and its sufficiency to support the demise. If, as ad [170] ministrators of the mortgagor, the tenants have now the equity of redemption, and a right to compel the application of the rents to the payment of the mortgage debt, a court of equity alone can relieve them. In a court of law, there is no foundation for the claim, that the title of the lessor has expired, or been extinguished ; and, of consequence, no light of resistance to her recovery of rent. As administrators, it is only the title or estate of the mortgagor which they can, in any court, assert. An estoppel of the same nature as that binding upon a tenant, precludes a mortgagor, or those claiming under and in privity with him, from disputing the title of the mortgagee, or his right to the possession, so far as the right is not inconsistent with the terms of the mortgage. — 1 Jones Mort. § 682. We find no error in the record, and the judgment must be affirmed.