Ryder v. Mansell , 66 Me. 167 ( 1877 )

Peters, J.

The facts material to this controversy are these : The plaintiff was the owner of a house, situated on the land of a third person, upon which house was an outstanding mortgage. The plaintiff let the house to the defendant, by parol agreement, for a rent to be paid monthly. After this, the defendant purchased the mortgage upon his own account, and foreclosed it as one upon personal property. Before the foreclosure was commenced, the defendant notified the plaintiff of his purchase, but never surrendered the possession of the house to him, nor offered to.

The suit is for rent which accrued both before and after the foreclosure was perfected, and the complaint for possession was instituted after it was perfected.

The plaintiff contends that the defendant is liable for rent of tbe house until he shall surrender possession of the same to him, and that, until that is done, he is estopped, by the relation of landlord and tenant, to set up any claim of title of his own thereto. On the other hand, the defendant contends that he carmot be ousted from the possession by the plaintiff, and that he is not liable for any rent accruing subsequently to his purchase of the mortgage, whether foreclosed or not.

Our opinion is, that the plaintiff can recover for the rent of the house up to the time when the defendant’s title thereto became absolute and completed by foreclosure, and that he cannot recover for any rent after that time; and that tbe complaint for forcible detainer cannot be maintained.

The defendant contends that the doctrine of estoppel, such as exists by the relation of landlord and tenant, does not apply to a building that is merely personal property. We think it does apply to a house which is personal estate, situated as this house appears to be. Although, perhaps, not distinctly disclosed by tbe evidence, it is inferable that tbe rightful possessor of the building would be entitled to the use of the soil. By hiring the house, the defendant became entitled to use and enjoy the possession of the land upon which the house stands. The reason of the rule of estoppel applies to this property with as much force as to any other. Many landlords have themselves only the estate of lessees. And the doctrine of estoppel as between principal and agent, and bailor and bailee, is not widely different from that which applies between hirers and letters of real estate. Coburn v. Palmer, 8 Cush. 124. Hilbourn v. Fogg, 99 Mass. 11. Smith v. Grant, 56 Maine, 255. As to bailments, see collection of cases in Abbott’s U. S. D., vol. 2, p. 476.

But the defendant was not bound to the plaintiff as his landlord after the mortgage was finally foreclosed. Although a tenant, without a surrender or eviction, or something equivalent thereto, cannot show that the title of his landlord was not a valid one when he entered under him, he can show that such valid title has been legally extinguished or determined, so that it no longer exists. He does nothing thereby inconsistent with the lessor’s right to grant the original lease. The tenant cannot be allowed to plead to his landlord’s action nil habuit in tenementis, but he can plead nil habet, &c. A tenant does not deny that the landlord had a title at the beginning of the lease, by showing that the same title has expired. This exception to the general rule is well established by numerous authorities,, and is entirely consistent with the reasons for maintaining the rule itself. We do not perceive why the facts of this case do not bring these parties within the application of this principle. See cases cited supra. Also cases collected in note under title of Estoppel, in Chitty on Plead., 16th Am. Ed.; Wash, on Real Prop., vol. 1, book 1, c. 10, § 8. Lamson v. Clarkson, 113 Mass. 348, and O’Brien v. Ball, 119 Mass. 28, and Whitney v. Dinsmore, 6 Cush. 124, are cases directly in point.

The plaintiff makes a point that the mortgage is not well foreclosed, because the defendant in the papers is sometimes described as William H. Mansell, and sometimes as William Mansell, with the middle initial omitted. But we are satisfied that by both names he was known to be the same person, and that no misapprehension or mistake has occurred on that account. Collins v. Douglass, 1 Gray, 167. Hubbard v. Smith, 4 Gray, 72. State v. Taggart, 38 Maine, 298. Dutton v. Simmons, 65 Maine, 583, 585.

Tlie result is that, In the complaint of forcible entry and detainer the complainant is nonsuit; and in the action at law the defendant is to be defaulted.

Appleton, O. J., Walton, Dickerson, Baeeows and Virgin, JJ., concurred.