McMillan v. Otis

SOMERYILLE, J.- — This casé, when last before this court, ' on appeal, was under the title of Otis v. McMillan & Sons, 70 Ala. 46. The facts are fully stated in the report of the case, and it is unnecessary that they should be again repeated in detail for any purpose of this decision. We are urged by appel [565] lant’s counsel to review the doctrine announced in that case, which was decided bty a divided court. This is unnecessary, in as much as it is our judgment that the general charge given by the court below, in favor of the defendant, was correct on other and different principles. If we concede that there was no merger, or extinguishment, of the lease made by Jewett to the defendant, Otis, but that it still continued in full force and effect as a lease, with its attendant relationship of landlord and tenant, the evidence shows that this lease was assigned to McMillan & Sons, and not to the plaintiff, M. M. McMillan, alone. The former, in their partnership capacity, were, therefore, the legal owners of the lease, and not the plaintiff. The plaintiff was not the sole landlord of the defendant, entitled as such to the accrued rents, for which the present action is brought; but such rents, if recoverable at all on the strength of the assigned lease, could be sued for only in the name of McMillan & Sons. The variance, therefore, between the allegata and prohata, was fatal to any recovery based on rights derived from the assignment of the written lease. , It is insisted, however, that the plaintiff was entitled to recover 'for use and occupation, because he was the trustee of a deed of trust, in the nature of a mortgage, executed to him by Jewett, in May, 1876, conveying to him the premises in the occupancy of the defendant. This would undoubtedly be true, if the law-day of the mortgage, or trust-deed, had arrived, and the plaintiff, as mortgagee or trustee, was entitled to possession during the time when the defendant was in possession and the rents accrued, and, being so entitled, he was active in making claim to the rents, by giving notice to the defendant, as tenant in possession. — Johnston & Stewart v. Riddle, 70 Ala. 219; Marx v. Marx, 51 Ala. 222; Knox v. Easton, 38 Ala. 345. Tlie rule as to mortgages, in this State, is settled to be, that such a conveyance confers on the mortgagee a'title under which he may take immediate possesssion, unless there he some stipulation or agreement in the mortgage, express or implied, postponing the mortgagee’s right to take possession until default, or the law-day of the instrument, as it is commonly designated. The decisions are uniform, and without conflict, on this point.— Watford v. Oates, 57 Ala. 290; Woodward v. Parsons, 59 Ala. 625; Hutchinson v. Dearing, 20 Ala. 798; Toomer v. Randolph, 60 Ala. 356; Duval v. McLoskey, 1 Ala. 708; Knox v. Easton, 38 Ala. 345. It is clear to our mind, that the language of the mortgage in question, by clear implication, defers the right of the mortgagee to take possession until tile maturity of the mortgage-debt, [566] and that before this day of default he was not entitled to claim the rents. Affirmed.