Swift v. Ivery

Hart, J. (after stating the facts). It is earnestly insisted by counsel for appellants that the decree should be reversed because the undisputed evidence shows that, after the foreclosure under the power contained in the mortgage, one of the appellees went into possession of the land for herself and the other appellees, and gave a rent note to one of the appellants for the rent for 1912, and that she continued to reside on the land as the tenant of one of the appellants. Under this state of facts, counsel invoke the rule laid down in Gibson v. Allen-West Com. Co., 138 Ark. 172, and cases cited to the effect that in an action to recover possession of land the tenant can not deny the landlord’s title to the premises. The rule invoked is well settled and not open to controversy in this State, but it has no application in suits like the present one. While the landlord seeks to recover the possession of the land, he can do so under the lease, and the tenant gains no advantage over the landlord by taking a lease. There is an exception to the general rule, however, where the landlord goes further and demands to have his title in fee adjudicated against the defendant. If appellants’ position is correct, the landlord might obtain a title in fee by estoppel against the tenant and thus acquire an advantage to which he is not entitled. In Stevenson v. Rogers (Tex.), Ann. Cas. 1912 D, p. 99, the court held: “While, as a general rule, in an action by a lessor after termination of the lease for possession of the leased premises, the defendant can not dispute the plaintiff’s title or right to possession without first surrendering the possession he received under the lease, where, however,' the suit is to recover possession and establish the plaintiff’s title, whereby the defendant’s title would be destroyed, the defendant may defend by showing a superior title in himself.” Several cases are cited to sustain the holding of the court. In Hebden v. Bina (N. D.), 116 N. W: 85, 138 Am. St. Rep. 700, a case in all essential respects like the present one, the court said that it is well settled that a tenant is not estopped to deny his landlord’s title in any action such as this, but that he is thus estopped merely in actions arising’ out of the relation of landlord and tenant. Several cases are cited in it to support the decision. In the instant case, appellants filed a cross-complaint ’ in which they ask that the title to the land in controversy be invested in P. B. Swift and quieted in him. Therefore, appellees were not estopped from disputing the appellant’s title. It is contended by counsel for appellees that the sale by G. T. Whatley, as agent and trustee of D. L. King, to P. B. Swift was void. In this contention we think counsel are correct. The mortgage was foreclosed under the power of sale contained in it, and' the right to do so is derived from the mortgage itself. The mortgage bestowed the power of sale upon the mortgagee and his assignee. By the terms of the power only King or his assignee could execute it. The right to substitute some one else did not exist. King never assigned the mortgage, and the sale by Whatley for him under1 the power was void. Hence the deed executed by Whatley to Swift was of no effect and conferred no title upon the latter. Stallings v. Thomas, 55 Ark. 326. See also, 27 Cyc., p. 1459, and 19 R. C. L., 591. The sale was void for another reason. The record does not show that it was appraised as required by the statute. In Craig v. Meriwether, 84 Ark. 298, it was held that a sale of mortgaged land under a power1 contained in the mortgage, without first having the land appraised as required by the statute, is void. The sale being void, the attitude of the mortgagee toward the land was .unchanged. The record shows that Lula Ivery went into possession of the land for herself and her brothers and sisters. Two of these in connection with their mother, who had a dower interest in the land, had executed a mortgage on the land to D. L. King. The act of Lula Ivery under these circumstances in signing a rent note and paying rent to P. B. Swift constituted him a mortgagee in possession. The rights of the parties are therefore to be determined by the law regulating the rights and duties of such mortgagee. Stallings v. Thomas, 55 Ark. 326. The sale to Swift being void, he could only'be treated as an assignee of D. L. King under the mortgage. Therefore the attornment of Lula Ivery to him constituted him a mortgagee in possession, and he could acquire no title while occupying- that relation adversely to the rights of appellees. Appellants, therefore, being in the attitude of a mortgagee in possession, acquired no title by adverse possession, as pleaded and claimed by them. Therefore,, the court was right in ascertaining the amount due them under the mortgage and providing for a sale of the land in satisfaction thereof in case default was made in the payment of the same by a designated time. There was also no error in quieting the title in the appellees in case such payment was made. It follows that the decree of the chancellor was correct, as far as the appellants are concerned, and it will be affirmed.