Loring v. Bartlett , 4 App. D.C. 1 ( 1894 )

Mr. Chief Justice Alvey

delivered the opinion of the Court :

As we have already said, the only question on this appeal is one of jurisdiction of the justice of the peace under the statute.

It has been very earnestly argued on behalf of the appellant that, treating the deed of trust as in substance a mortgage, the relation of landlord and tenant subsisted, withii. the meaning and general purview of the statute, as between the mortgagor, the present appellee, and the trustees in the deed, and that upon the sale of the property, the mortgagor is subject to the summary jurisdiction as provided by the statute, at the instance of the purchaser, claiming under and as assignee of the trustees.

Whether the relation of landlord and tenant, in the full and ordinary sense of the terms, exists, as between mortgagor and mortgagee in the absence of special stipulation to that effect, during the time that the mortgagor may be allowed to remain in possession of the mortgaged premises, is a question upon which a great diversity of opinion has been expressed by judges of the highest authority, both in England and in this country. There is no doubt, however, that a mortgagor in possession, while he may not be properly a tenant at will in the ordinary sense of the term, yet he is tenant in a certain and particular sense. Or, as said by Mr. Justice Buller, in Birch v. Wright, 1 T. Rep. 382, “ That a mortgagor has often been called tenant at will to the mortgagee in courts of law and equity is undoubtedly true, but I think inaccurately so; and the expression has been used when it was not very material to ascertain what his powers or interests were, or to settle with any great precision in what respects he did and in what respects he did not resemble a tenant at will. In old cases he is sometimes called tenant at will and sometimes tenant at sufferance. In Keech v. Hall, 1 Dougl. 21, Wallace called him the agent of the mortgagee, and Lord Mansfield stated him to be tenant at will to some purposes, but not to others. In Moss v. Gallimore, 1 Dougl. 282, Lord Mansfield said a mortgagor is not in reality a tenant to the mortgagee; if he were, he must pay rent, but that is not so. To many purposes, he is like a tenant at will; but he does not pay rent; he must pay interest only. And further on in the opinion the learned justice says: “ He is not a tenant at will, because he is not entitled to the growing crops after the will is determined. He is not considered as tenant at will in those proceedings which are in daily use between mortgagor and mortgagee; I mean in ejectments brought for the recovery of the mortgaged lands.” This seems to be the prevailing view entertained by the English courts upon the subject, though there may be cases found where general language has been employed of a less qualified nature.

But we are not under the necessity of deciding this perplexed question in this case, as to whether the simple and ordinary relation of mortgagor and mortgagee involves the relation of landlord and tenant by implication of law, within the meaning and sense of the statute to which we have referred. Indeed, it is doubtful whether such question is strictly presented on this record, and as it is unnecessary to decide it, we refrain from expressing any definite opinion in regard to it.

There is another element in the case which furnishes ample ground for a definite decision of the question of jurisdiction of the justice of the peace here involved.

The effect of the deed to the trustees was to vest the fee simple estate in them from the date of the deed; and but for the express provision or reservation in the deed which we have already recited, whereby the appellee was allowed to retain possession of the property until default made, the right of possession would also have vested in the trustees from the date of the deed. And the question is, whether by reasonable construction and legal operation of that clause in the deed, reserving to the appellee the right to possess and enjoy, and to receive to her own use the rents and profits of the mortgaged premises until default made, had the effect of a redemise of the premises to the mortgagor or grantor; and upon principle we think that is the effect of such stipulation or reservation in the deed. This clause in the deed in favor of the continued possession of the mortgagor falls fully within the principle we laid down in Bacon’s Abridgment, Tit. Leases, K., which reads thus: “ That whatever words are sufficient to explain the intent of the parties, that the one shall divest himself of the possession, and the other come into it for such a determinate time, such words, whether they run in the form of a license, covenant or agreement, are of themselves sufficient, and will, in construction of law, amount to a lease for years as effectually as if the most proper and pertinent words had been made use of for that purpose.” Here the trustees by the deed divested themselves of their immediate right of possession, and vested that right in the mortgagor until default made by her.

The clause in the deed before us, in respect to the possession, is'very similar in terms to that in the mortgage in the case of Wilkinson v. Hall, 3 Bing. N. C. 508. In that case, the plaintiff mortgaged lands in fee, with a proviso for redemption on payment of principal in June, 1833; but it was agreed that the mortgagee should not call in the principal till 1840, if interest were regularly paid in the meantime; and that the mortgagor should hold the premises and take the rents, issues and profits for his own use, till default should be made in the payment of principal and interest as stipulated ; and it was held that this agreement, reserving the possession to the mortgagor, operated as a redemise to him until 1840. In that case the passage from Bacon’s Abridgment above recited was quoted with approval and followed. See also the prior case of Fisher v. Giles, 5 Bing. 421.

And so in a fully argued and well .considered case in the Court of Appeals of Maryland, The George's Creek Coal and Iron Co. v. Detmold, 1 Md. 225, the plaintiff had conveyed the premises in trust, to secure the payment of certain claims, but with a proviso that until default should be made in the payment of any part of such claims or interest, the company was to hold and enjoy the premises, and to receive the rents, issues and profits thereof, and from time to time, with the consent of the trustees, to make leases of any part of the premises, etc. In that case it was held that such reservation in the deed of trust, in respect to the possession and enjoyment of the premises by the grantor of the deed, operated as a redemise; and the case of Wilkinson v. Hall, supra, and other cases to like effect, were cited and approved. In this Maryland case, the objection was taken by counsel that the deed was a deed poll, and therefore could not operate as a demise from the trustees, because not signed by them; but that objection was overruled, and in support of the ruling the clear opinion of the court to the point in the case of Flagg v. Flagg, 11 Pick. 475, 477, is referred to.

The property having been sold under the power in the deed after default made by the appellee, the purchaser became entitled to all the rights vested in the trustees in regard to the possession of the premises, and “is substituted to their rights in that respect, by operation of law. Martin v. Martin, 7 Md. 368, 375 ; Spindler v. Atkinson, 3 Md. 423 ; Comyn on Landlord and Tenant, 250. The case of the appellee is that of a party holding after the terms of an express contract have expired, and her continued holding is without right, within the terms and meaning of the statute, as against the purchaser. The appellant as purchaser would seem to be clearly entitled to the possession of the premises, and her complaint to the justice of the peace presents a case within the terms and meaning of the statute, to entitle her to the summary relief prayed. Harris v. Barber, 129 U. S. 366, 371.

We shall reverse the judgment of the court below, and remand the case that the writ of certiorari may be quashed, and the proceedings remanded to the justice of the peace, that he may proceed in the exercise of his jurisdiction in the premises, in accordance with the provisions of the statute.

Judgment reversed and cause remanded, with costs to the appellant.