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Of Proceeding to recover Premises by a Mortgagee.
If a mortgagee means only to get into the receipt of the rents and profits of the estate, he need not give notice to a tenant to quit, before bringing his ejectment, though the mortgage be made subsequent to the tenant's lease. But in such case, he shall not be suffered to turn the tenant out ef possession by the execution. White ex dem. Whatley v. Hawkins. Mich. 14 Geo. 3. Bull. Ni. Prr. g6. And though, in this case, the lease was only from year to year, and, with respect to the last year, might be considered as a lease subsequent to the mortgage, yet the court held it would have been the same, if the lease were for z long term.
If a man makes a mortgage for years to A. who, without the mortgagor's joining, assigns to B. who assigns to C —C. may bring ejedment against the mortgagor; for, upon executing the deed of mortgage, the mortgagor, by the covenant to enjoy till desault of payment, is tenant at wits, and the assignment of the mortgagee could only make him tenant at sufferance. I Salk. 245.
But it has been said, that it would be otherwise, if the mortgagor were to die, apd his heir enter, and then the mortgagee make an assignment without entry, or the heir of the mortgagor joining; for the entry of such heir would be tortious, and consequently, the mortgagee would be out of possession, and his assignment void. Ibid. Tamen quære.
By the 7 Geo. 2. c. 20. An act for the more easy 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 secured by such moitgagees, and for performing the covenants therein contained; and likewise commence suits in equity, to foreclose their mortgagors from redeeming their estates; and the courts'of law, where such ejectments are brought, have not power to compel such mortgagees to accept the principal monies and interests due on such mortgages and costs, or to stay such mortgagees from proceeding to judgment and execution in such actions; but such mortgagors must have recourse to equity for that purpose, in which case likewise, the courts of Equity do not give relief until the hearing of the cause:" For remedy, &c. it is enacted, "That where any action (hall be brought on arfy bond, for payment of money secured by such mortgage,
or Of Proceeding to recover Premises by a Mort
or performance of the covenants therein'contained, or where any action of ejectment (hall be brought in any of the courts at ffejiminster, great sessions, or superior courts of the counties palatine, by any mortgagee, &c. his 'heirs, executors, administrators, or assigns, for the recovery of the possession of any mortgaged lands, &c. and no suit shall be th?n depending in any of his majesty's courts of Equity, .for or touching the foreclosing or redeiming of such mortgaged premises; if the person, having right to redeem such mortgaged premises, and who shall appear and become desendant in such action, shall at any time, pending such action, pay unto such mortgagee, &c. or, in case of his refusal, shall bring into court, where such action shall be depending, all the principal monies and interest due on such mortgage, and also all such costs as have been expended in any suit at law or in equity upon such mortgage, [such money for principal, interest, and costs, to be ascertained and computed by the proper officer of the court] the monies so paid, or brought into court, shall be deemed and taken to bo in sull satissaction and discharge of such mortgage; and the court shall and may discharge such mortgagor of and from the same accordingly; and shall and may, by rule of the same court, compei such mortgagee, at the costs and charges of such mortgagor, to assign, surrender, or reconvey such mortgaged premises, and such an interest therein as the mortgagee hath, and deliver up all deeds, &c. in his custody, relating to the title thereof, to the mortgagor, who shall have paid or brought such monies into court, or his executors, C3V. or other person as he shall appoint."
The second section enacts, " That on bills of foreclosure brought in equity for the payment of the money, or in desault thereof for the recovery of the premises, such court of equity, upon application of the desendant having a right to redeem, and upon admission 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 shall not extend to cases where the right of redemption is controverted or the money due not adjusted, nor to prejudice any subsequent mortgage."
A judge made an order, pursuant to this act, to stay the mortgagee's proceeding in ejectment, upon bringing principal, interest, and costs, into couit; and a rule was made to
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Of Proceeding to recover Premises by a Mortgagee.
make the order a rule of court «//7 causa. But it afterwards appearing to the court, that notice had been given by the mortgagee to the mortgager, that he insisted upon payment of two bonds, which were a lien upon the estate, the case was adjudged to be out of this act, and the rule nisi was discharged. Barnes 177.
Motion to stay proceedings in ejectment, on payment of mortgage-money and costs, pursuant to this act; on shewing cause the plaintiff produced an assidavit, that the mortgagee had been at great expence in necessary repairs of part of the premises in his possession, (the ejectment was brought for the residue) and therefore prayed, that the prothonotary might be directed to make allowance for such repairs. Per cur. The rule must follow the words of the statute. The prothonotary will make just aliowances and deductions. Barnes 176.
Rule on fat. 7 Geo. 2. to shew cause why proceedings should not be staid, on payment of mortgage-money and costs, was made absolute; the lessors of plaintiff, assignees of the mortgagee insisted to be paid a bond, and a simple contract debt due to themselves in their own right. Per cur. A bond is no lien in equity, unless where the heir comes to redeem. Barnes 182.
In Mich. term, ao Geo 3. B. R. a case was reserved from the Oxford circuit, respecting a mortgagee's getting into the receipt of the rents and profits of the estate. Case was this, The plaintiff obtained a lease of the premisses from H. I yanuary, 1772, for twenty years, rendering 40/. rent, payable the I2tb of May. In May 1772, H. mortgaged to the desendant G. The lessee entered at the commencement of his term, and had paid all the rent to H. except 28/. Afterwards, in Nov. 1778, H. became a bankrupt, the said 28 I. being due to him for rent from the plaintiff; and more than that due from the bankrupt to the desendant G. for interest on the mortgage. 31 December, Notice was given to the plaintiff cf the bankruptcy of G. and a demand of the rent due made by the assignees; and on i^tb yanuary following, notice was also given to the plaintiff of the mortgage, and a demand made of the said rent in arrear by the desendant G. the mortgagee; which not being paid, P. the other desendant, by the direction of G. distrained for the said rent, and gave notice. On which the plaintiff brought 3 . trespass j
Os Proceeding to recover Premises by a Mortgagee.
trespass; and the court held, that the mortgagee had the legal interest in the premisses; and that, after notice being given by him, he might distrain for the rent due, and not paid to the mortgagor before notice, to satisfy the arrears of interest due to him on the mortgage. Moss v. GalUmcre and Pyott.
Of amending the Declaration in Ejectments staying Proceedings, consolidating Declarations, &c,
IN the declaration delivered to the tenant in possession, the said James, instead of John, wassaid to enter by virtue of the demise; and the court resused to amend it, for they considered it as process : and Mr. justice Wright cited a case, Hil. 15 Get). 2. where the premises were laid to lie in Twickenham and IJleworth, or one of them; and the court resused to let the plaintiff amend by striking out the disjunctive words. Stra. 1211.
But if the declarations delivered be right, it seems, .that they will be a sufficient warrant to amend the declaration en record by. Vide 2 Ld. Raym. 896.
The term in ejectment being near expiring it was amended, without any consent, from five years to ten years. Oates v. Shepherd, Stra. 1272. But videSalk. 257. iF the term expires, pending the suit, it cannot be enlarged without consent.
But where a cause was hung up so long by agreement, on speci»l 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, instead of he entered, (s'(. Stra. 807.
On a rule to shew cause, why a declaration in ejectment should not be amended on payment of costs, by altering the time of the demise, where the plaintiff had been barred by a fine from bringing a new ejectment, the rule was made absolute. Burr. 4 pt. 2446.
Ten declarations on the same demise were delivered for ten houses in Steyning in Sussex, in the occupation of ten persons; and on motion to consolidate them, and put them all in one issue, upon suggestion that the title was the same in all, the court refused it; for they said the lessor might have sued them at ten different times, and it would be obliging him to go on against all, when perhaps he might be ready in some of them only. Stra. 1149.
But in C. B. on motion to consolidate sixteen ejeflments in one, after sixteen several issues joined, and though it was urged for the plaintiff that the issues were delivered and paid for a long time ago, the court held, that it was necessary for the desendants to pay for the issues to prevent judgment, and ordered the ejectments to be consolidated.
N. B. Each declaration contained a large number of messuages, and they were word for word the same. Had