Allen v. Chatfield , 8 Minn. 435 ( 1863 )

By the Court.

Emmett, O. J.

This action was originally commenced by the present Defendant in Error, against Allen, one of the Plaintiffs in Error, to recover for rent claimed to be due, for the use of certain premises, alleged to have been leased by him to said Allen. The Defendant in that action admitted the terms of the lease, as alleged, and the amount claimed to be due thereon, but he averred that the leased premises were also claimed by one James Dulin, of whom he had also rented, and that by his agreement he was to occupy tiie premises, and pay the rent only to the claimant who should show himself entitled thereto. That the share or rent due to such rightful claimant was ready for delivery, but that said Plaintiff was not entitled to the same, because said Du-len, and not he, the Plaintiff, was the owner, and entitled to the rent of said premises.

The case, without further pleading, was submitted to the Court to be tried without the intervention of a jury, and the judge found, among other facts, that the said Defendant had leased the premises of the Plaintiff upon the terms and in the manner set forth in the complaint; and that a certain sum was due the Plaintiff, and for which he rendered judgment. He also found that the Defendant had afterwards made asim-ilar agreement with the said Dulin ; but that the agreement with the Plaintiff was absolute, and not contingent upon his showing himself entitled to the rent, as against Dulin.

There was also an attempt to settle in this action the right of the respective claimants to the property which Avas the subject of the lease. And to this end the Defendant, Allen, moved the Court to make Dulin, the other claimant, a party Defendant, his (Allen’s) counsel proposing to appear for Dulin in such case. To this proposition the Plaintiff' consented, and accordingly Dulin was made a Defendant, Allen’s counsel appearing for him.

The Judge then permitted the parties to go into the question of title, and his findings, as numbered respectively from 6 to 12 inclusive, have direct reference to the question of ownership.

Prom the several facts found, the Judge concludes, as matter of law, that the Defendant, Allen, became liable, on his contract, to pay the Plaintiff the rent of the premises in kind, and, having failed to deliver it on demand, was responsible for its value in money. That the mortgage foreclosure referred to in the facts found was regular and valid, and that the Plaintiff was entitled to the rent of the premises, as against the Defendant, Dulin. And, therefore, judgment was entered as be-, fore stated, in favor of the Plaintiff, against the Defendant) Allen, for the amount of rent found to be due. And it was also further adjudged and determined that the Defendant James Dulin, had not, at the commencement of the action> or since, any right, title or interest in the premises described in the complaint, nor any right, title or interest in the subject of said action.

The facts found, in regard to the contract between Allen and the Plaintiff below, show, conclusively that the former was the tenant of the latter; and this fact (there being no eviction,) settles the question as between them ; for no rube is better settled than that a tenant in such a case will not be allowed to dispute the title of his landlord. And his responsibility being thus fixed by his own consent, he could not relieve himself by any mere act of his own, such as attorning to a stranger or another claimant, and thus throw upon his landlord the burthen of proving a title which the contract of leasing admits. The subsequent arrangement, or contract, which the tenant in this case made with the other claimant, cannot, therefore, avail him in this action. He may have made himself liable to the other claimant also, but with that we have nothing to do.

The question of title, as between the two claimants, to which so much attention has been devoted by the District Judge and the different counsel, depends entirely upon the validity of a sale made by authority of the assignee of a mortgage of these lands under a power of sale, wherein said' as-signee was the purchaser, and his own agent or attorney the auctioneer and maker of the certificate and affidavit of sale.

The regularity and validity of a sale, under a power contained in a mortgage, where the mortgagee, or his successor . in interest, becomes the purchaser, was recently before this Court in the case of Ramsey vs. Merriam, 6 Minn, at,., 168, and it was then held, after elaborate arguments, and more than ordinary consideration, that such mortgagee cannot become the purchaser at his own sale, under the power, and that to enable him so to do, the sale must be made by the sheriff or other officer named-in the statute, who is the agent of the law in such eases, and not of the mortgagee.

The decision here referred to, which doubtless was not before the Court at the time the decision was rendered in this case, determines the question of title against the Plaintiff below, who was the purchaser under such sale; and so far* therefore, as the judgment of the District Court adjudges and determines that Dnlin, the mortgagor, had not, at the time of the commencement of the action, nor since, any right, title or interest in the premises described in the complaint, the same is hereby reversed; but in all other respects said judgment is affirmed.