Of Proceeding to recover Premises by a Mort

gagee.

If a mortgagee means only to get into the receipt of the rents and profits of the eftate, he need not give notice to a tenant to quit, before bringing his ejectment, though the mortgage be made fubfequent to the tenant's leafe. But in fuch cafe, he shall not be suffered to turn the tenant out of poffeffion by the execution. White ex dem. Whatley v. Hawkins. Mich. 14 Geo. 3. Bull. Ni. Pri. 96. And though, in this cafe, the leafe was only from year to year, and, with respect to the last year, might be confidered as a leafe fubfequent to the mortgage, yet the court held it would have been the fame, if the leafe were for a long

term.

If a man makes a mortgage for years to A. who, without the mortgagor's joining, affigns to B. who affigns to C-C. may bring ejectment against the mortgagor; for, upon executing the deed of mortgage, the mortgagor, by the covenant to enjoy till default of payment, is tenant at will, and the affignment of the mortgagee could only make him tenant at fufferance. 1 Salk. 245.

But it has been faid, that it would be otherwife, if the mortgagor were to die, and his heir enter, and then the mortgagee make an affignment without entry, or the heir of the mortgagor joining; for the entry of fuch heir would be tortious, and confequently, the mortgagee would be out of poffeffion, and his affignment void. Ibid. Tamen quære.

66

By the 7 Gen. 2. c. 20. An act for the more eafy redemption and foreclosure of mortgages, after reciting, that mortgagees frequently bring actions of ejectment for the recovery of lands and estates to them mortgaged, and bring actions on bonds given by mortgagors to pay the money fecured by fuch mortgagees, and for performing the covenants therein contained; and likewife commence fuits in equity, to foreclofe their mortgagors from redeeming their eftates; and the courts of law, where fuch ejectments are brought, have not power to compel fuch mortgagees to accept the principal monies and interefts due on fuch mortgages and cofls, or to ftay fuch mortgagees from proceeding to judgment and execution in fuch actions; but fuch mortgagors muft have recourfe to equity for that purpose, in which cafe like wife, the courts of Equity do not give relief until the hearing of the caufe:" For remedy, &c. it is enacted, "That where any action shall be brought on any bond, for payment of money fecured by fuch mortgage,

or

Of Proceeding to recover Premises by a Mort

gagee.

or performance of the covenants therein 'contained, or where any action of ejectment shall be brought in any of the courts at Westminster, great feffions, or fuperior courts of the coun ties palatine, by any mortgagee, &c. his heirs, executors, adminiftrators, or affigns, for the recovery of the poffeffion of any mortgaged lands, &c. and no fuit fhall be then de-. pending in any of his majefty's courts of Equity, for or touching the foreclofing or redeeming of fuch mortgaged premifes; if the perfon, having right to redeem fuch mortgaged premifes, and who fhall appear and become defendant in fuch action, shall at any time, pending fuch action, pay unto fuch mortgagee, &c. or, in cafe of his refufal, fhall bring into court, where fuch action fhall be depending, all the principal monies and intereft due on fuch mortgage, and alfo all fuch costs as have been expended in any fuit at law or in equity upon fuch mortgage, [fuch money for principal, intereft, and cofts, to be afcertained and computed by the proper officer of the court] the monies fo paid, or brought into court, fhall be deemed and taken to be in full fatisfaction and difcharge of fuch mortgage; and the court fball and may difcharge fuch mortgagor of and from the fame accordingly; and fhall and may, by rule of the fame court, compel fuch mortgagee, at the cofts and charges of fuch mortgagor, to affign, furrender, or reconvey fuch mortgaged premifes, and fuch an intereft therein as the mortgagee hath, and deliver up all deeds, &c. in his cuftody, relating to the title thereof, to the mortgagor, who fhall have paid or brought fuch monies into court, or his executors, &c. or other perfon as he fhall appoint."

The fecond fection enacts, "That on bills of foreclosure brought in equity for the payment of the money, or in default thereof for the recovery of the premifes, fuch court of equity, upon application of the defendant having a right to redeem, and upon admiffion of the plaintiff's right, may, before hearing, make order therein, as if the cause had been brought to a hearing, &c.

Provided, "that this act fhall not extend to cafes where the right of redemption is controverted or the money due not adjusted, nor to prejudice any fubfequent mortgage.'

A judge made an order, pursuant to this act, to stay the mortgagee's proceeding in ejectment, upon bringing principal, intereft, and cofts, into court; and a rule was made to

Of Proceeding to recover Premises by a Mortgagee.

make the order a rule of court nifi caufâ. But it afterwards appearing to the court, that notice had been given by the mortgagee to the mortgagor, that he infifted upon payment of two bonds, which were a lien upon the eftate, the cafe was adjudged to be out of this act, and the rule nifi was difcharged. Barnes 177.

Motion to stay proceedings in ejectment, on payment of mortgage-money and cofts, purfuant to this act; on fhewing caufe the plaintiff produced an affidavit, that the mortgagee had been at great expence in neceffary repairs of part of the premises in his poffeffion, (the ejectment was brought for the refidue) and therefore prayed, that the prothonotary might be directed to make allowance for fuch repairs. Per cur. The rule muft follow the words of the ftatute. The prothonotary will make juft allowances and deductions. Barnes 176.

Rule on fat. 7 Geo. 2. to fhew caufe why proceedings fhould not be ftaid, on payment of mortgage-money and cofts, was made abfolute; the leffors of plaintiff, affignees of the mortgagee infifted to be paid a bond, and a fimple contract debt due to themfelves in their own right. Per cur. A bond is no lien in equity, unless where the heir cornes to redeem. Barnes 182.

In Mich. term, 20 Geo 3. B. R. a cafe was referved from the Oxford circuit, refpecting a mortgagee's getting into the receipt of the rents and profits of the eftate. Cafe was this, The plaintiff obtained a leafe of the premiffes from H. 1 January, 1772, for twenty years, rendering 401. rent, payable the 12th of May. In May 1772, H. mortgaged to the defendant G. The leffee entered at the commencement of his term, and had paid all the rent to H. except 281. Afterwards, in Nov. 1778, H. became a bankrupt, the said 28. being due to him for rent from the plaintiff, and more than that due from the bankrupt to the defendant G. for intereft on the mortgage. 31 December, Notice was given to the plaintiff of the bankruptcy of G. and a demand of the rent due made by the affignees; and on 13th January following, notice was alfo given to the plaintiff of the mortgage, and a demand made of the said rent in arrear by the defendant G. the mortgagee; which not being paid, P. the other defendant, by the direction of G. diftrained for the faid rent, and gave notice. On which the plaintiff brought trefpafs;

3

Of Proceeding to recover Premifes by a Mort

gagee.

trefpafs; and the court held, that the mortgagee had the legal intereft in the premiffes; and that, after notice being given by him, he might diftrain for the rent due, and not paid to the mortgagor before notice, to fatisfy the arrears of intereft due to him on the mortgage. Mofs v. Gallimore and Pyott.

Of

Of amending the Declaration in Ejectment, flaying Proceedings, confolidating Declarations, &c.

I

N the declaration delivered to the tenant in poffeffion, the faid James, instead of John, was faid to enter by virtue of the demife; and the court refused to amend it, for they confidered it as process: and Mr. juftice Wright cited a cafe, Hil. 15 Geo. 2. where the premifes were laid to lie in Twickenham and Isleworth, or one of them; and the court refufed to let the plaintiff amend by ftriking out the disjunctive words. Stra. 1211.

But if the declarations delivered be right, it seems, that they will be a fufficient warrant to amend the declaration on record by. Vide 2 Ld. Raym. 896.

The term in ejectment being near expiring it was amended, without any confent, from five years to ten years. Oates v. Shepherd, Stra. 1272. But vide Salk. 257. if the term expires, pending the fuit, it cannot be enlarged without confent.

But where a caufe was hung up fo long by agreement, on fpecial verdict, that the term expired, the court would not let it be enlarged. Anon.

Declaration in ejectment amended by making the verbs in the plural number, they entered, inftead of he entered, &c. Stra. 807.

On a rule to fhew caufe, why a declaration in ejectment fhould not be amended on payment of cofts, by altering the time of the demife, where the plaintiff had been barred by a fine from bringing a new ejectment, the rule was made abfolute. Burr. 4 pt. 2446.

Ten declarations on the fame demife were delivered for ten houses in Steyning in Suffex, in the occupation of ten perfons; and on motion to confolidate them, and put them all in one iffue, upon fuggeftion that the title was the fame in all, the court refufed it; for they faid the leffor might have fued them at ten different times, and it would be obliging him to go on against all, when perhaps he might be ready in fome of them only. Stra. 1149.

But in C. B. on motion to confolidate fixteen ejectments in one, after fixteen feveral iffues joined, and though it was urged for the plaintiff that the iffues were delivered and paid for a long time ago, the court held, that it was neceffary for the defendants to pay for the iflues to prevent judgment, and ordered the cjectments to be confolidated.

N. B. Each declaration contained a large number of meffuages, and they were word for word the fame. Had

each