a period anterior to the application (b); though the mere receipt by the mortgagee from the mortgagor of interest on the mortgage will not preclude the mortgagee from ejecting the mortgagor's tenant, declaring on a demise prior to the receipt (c). In the case last cited, Littledale, J., hinted a doubt as to the propriety of the judgment in Doe dem. Whitaker v. Hales (d); but Lord Denman subsequently declared (e) that, notwithstanding that doubt, the case appeared to him to be well decided.

If, after notice and demand, the tenant continue in possession, a jury may fairly infer a new tenancy from year to year between him and the mortgagee, at the old rent (f). But if the judge, not being required at the trial to leave it to the jury to say whether the tenant assented to the new tenancy, omit to do so, the omission cannot support a motion for a new trial on the ground of misdirection (g). ·

After such notice and demand, the tenant is justified in paying to the mortgagee as well such rent as may have fallen due since the mortgage, and remain unpaid to the mortgagor, as that which may thereafter become due. This was decided in the case of Pope v. Biggs (h), the court considering the mortgagee's demand to be equivalent to an eviction of the tenant by title paramount, which, of course, would be an answer to the mortgagor's claim (i). So, in Doe v. Barton (k), Lord Denman said that the mortgagee was entitled to the profits of the land, and that the tenant was right in paying him those profits, whether strictly called rent or not. That, as he might eject the lessee, and afterwards let to him, it seemed absurd to require him to go through the form of an ejectment in order to put the lessee

(b) Doe dem. Whitaker v. Hales, 7 Bing. 322; S. C. 5 Mo. & Pa. 132.

(c) Doe dem. Rogers v. Cadwallader,

2 Barn, & Adol. 473.

(d) Doe dem. Whitaker v. Hales, sup.

(e) Evans v. Elliot, 9 Adol. & Ell. 342. 355; S. C. 1 Per. & Dav. 256; 1 Willm. Wol. & Hodg. 744.

(f) Brown v. Storey, 1 Scott's N. R. 9; S. C. 1 Man. & Gra. 117. Doe dem. Hughes v. Bucknell, 8 Car. & Pa. 566.

(g) Brown v. Storey, sup.

(h) Pope v. Biggs, sup. p. 165.
(i) Ibid.

(k) Doe dem. Higginbotham v. Barton, sup.

into the very position in which he would stand by paying his rent to the mortgagee (1).

Though the tenant cannot dispute his landlord's (the mortgagor's) title to demise, he may show that such title was defeasible, and that it has been defeated (m).

In the case of Johnson v. Jones (n), the plaintiff in replevin, to an avowry for rent due in respect of premises held by the plaintiff as tenant to the defendant, pleaded, that, before the defendant had anything in the premises, one Ann Griffith, being seised in fee, mortgaged them in fee to J. Clement; that default was made in payment; that the equity of redemption descended to David Griffith, who leased them to the defendant for twenty-one years, who made the demise to the plaintiff mentioned in the avowry; that after the rent became due from the plaintiff as tenant to the defendant, the heir of the mortgagee, to whom the premises had descended, demanded payment thereof from the plaintiff, and threatened in case of non-payment to put the law in force, wherefore the plaintiff did then necessarily and unavoidably pay the said mortgagee the said sum of 147. so in arrear, "and so the plaintiff says that no part of the said sum of 147. of the said rent was, or is, in arrear, as in the avowry," &c. This plea was demurred to, on the ground that it attempted to deny the title of the defendant; that it showed no power in the mortgagee to compel payment, and that it amounted to riens in arrere. But it was held that the plea was not one of nil habuit, nor of eviction, but of payment; that the plaintiff did not deny his holding as tenant to the defendant; but showed that the lease was made subject to a prior charge, namely the mortgage, which he was compelled to pay; and that the facts stated in the plea showed an authority in law justifying payment to a third party.

It is to be observed that these cases are distinguishable

(1) See also similar remarks made by Parke, J., in Pope v. Biggs, 9 Barn. & Cres. 250-1; S. C. 4 Man. & Ry. 193. (m) Pope v. Biggs, sup.

(n) Johnson v. Jones, 9 Adol. & Ell. 809; S. C. 1 Per. & Dav. 651. And see Sapsford v. Fletcher, 4 Term Rep. 511. Taylor v. Zamira, 6 Taunt, 524.

from Alchorne v. Gomme (0), where the tenant had not only voluntarily attorned to the mortgagee, but expressly denied the title of his lessor, (the mortgagor).

3rdly. As to leases by the mortgagee alone.

Where a mortgage has become absolute, the mortgagee, being the unconditional legal owner of the premises, may alone grant leases for any term, regard being had to the quantity of estate conferred by the mortgage, which cannot be impeached at law by the mortgagor; but, before foreclosure of the equity of redemption, a mortgagee cannot make a lease of the property in mortgage, which will be binding in equity upon the mortgagor after redemption; unless it be necessary to avoid an apparent loss, in which case equity will not permit the lessee to be disturbed (p).

4thly. In order, therefore, to insure the permanency of a lease of lands in mortgage, the concurrence of both mortgagee and mortgagor must be obtained. The former, to pass the legal estate, should "demise and lease," and the latter, to affect his estate, should "grant, demise, and lease, and also ratify and confirm," care being taken to avoid the unskilful error of making the mortgagee the only demising party, with the consent and approbation of the mortgagor.

When granted by mortgagee and mortgagor, the lease operates, during the continuance of the mortgage, as the demise of the former, and the confirmation of the latter; but after the mortgage is paid off, as the demise of the latter, and confirmation of the former (q).

Where a mortgagor and his mortgagee for a term of years concurred in a deed by which the former demised and leased, and the latter ratified and confirmed, the premises unto a third party for the residue of the term, at a certain yearly rent, reserved to the mortgagor, his executors, administrators, or assigns, and which the lessee covenanted to pay to the

(0) Alchorne v. Gomme, 2 Bing. 54; S. C. 9 J. B. Mo. 130.

(p) Hungerford v. Clay, 9 Mod. 1; S. C. 2 Eq. Ca. Ab. 610.

(2) Doe dem. Barney v. Adams, 2 Crompt. & Jerv. 232; S. C. 2 Tyrwh.

289.

mortgagor, his executors, administrators, and assigns; but it was declared that nothing in the deed contained should tend to disqualify, abridge, lessen, alter, defeat, impeach, annul, or determine, the estate or interest of the mortgagee in the premises, which it was also declared should remain a security for his principal and interest, it was held that the mortgagee, and not the mortgagor, was entitled to the rent reserved by the lease; though the lessee was entitled to his term exempt from the mortgage (r).

A mortgagor cannot enforce a specific performance of a contract to take a lease, without first redeeming the mortgage, or obtaining the mortgagee's concurrence in the lease (s); though a party claiming under such a contract cannot compel the mortgagor to pay off the mortgage to give effect to the lease (t).

But in a very recent case (u), where a mortgagor contracted to sell a shop and dwelling house, stated in the particulars of sale to be held by a tenant under a lease at a certain yearly rent, the lease having in fact been granted by him after the mortgage, without the concurrence of the mortgagee, it was held, that, as the mortgagee was willing to concur in any conveyance, the mortgagor could make a good title, as by a re-conveyance by the mortgagee to the mortgagor, that which before was only a lease by estoppel, would be converted into a lease in interest.

It is a common practice to reserve the rent to the mortgagee during such part of the term as the mortgage shall be outstanding; and, after it shall have been discharged, to the mortgagor for the remainder of the term, if any; but, as rent reserved to a mortgagor would be but an annual sum in gross, it is better to reserve it generally during the term, leaving the law to carry it to the person legally entitled (x). Where the mortgagee and mortgagor concur in the grant,

(r) Edward v. Jones, 1 Col. 247.

(s) Costigan v. Hastler, 2 Scho, & Lef. 160.

(t) Ibid.

(u) Webb v. Austin, 8 Scott's N. R. 419; S. C. 7 Man, & Gra. 701; Law Jour. N. S. vol. 13, p. 203, C. P.

(x) Whitlock's case, 8 Co. 69,b. 71,a.

the covenants on the lessee's part should be entered into with the mortgagee, with a view to their running with the land. If entered into with the mortgagor, they are merely covenants in gross, and of no value at law to an assignee of the mortgage (y).

In an action lately brought by a lessee on an implied covenant arising out of a demise (z), against a mortgagee and his mortgagor, who, together with the trustee of a term, were demising parties in the lease, the court held that the plaintiff was bound to prove a joint demise by the two defendants, and that, as one of the defendants was entitled to an equity of redemption only, and, therefore, incapable of making a legal demise, a covenant by him could not be implied (a).

A demise by the mortgagee to the mortgagor will not suspend the condition; for the payment of the mortgagemoney does not arise from the profits of the land; and the condition is collateral (b).

In a late case (c), where a mortgage was made subject to redemption on re-payment of the money and interest on the 5th of June, 1833, and it was agreed that the mortgagee should not be entitled to call it in before the 5th of December, 1840, if the interest were regularly paid; with a proviso that it should be lawful for the mortgagor quietly to hold and enjoy the premises, and receive the rents thereof, till default in payment of the principal money, or the interest thereof, it was held that the proviso operated as a re-demise to the mortgagor till the 5th of Dec. 1840, provided the interest in the meantime were regularly paid.

(y) Webb v. Russell, 3 Term Rep. 393. Stokes v. Russell, 3 Term Rep. 679. Russell v. Stokes, in error, Exch. Chamb. 1 H. Blac. 562.

(2) The late act of 8 & 9 Vict. c. 106. s. 4, which deprived the word grant of its operation as a covenant in law, did not extend to the word demise.

(a) Smith v. Pocklington, 1 Crompt. & Jerv. 445; S. C. 1 Tyrw. 309.

(b) Jenk. Cent. 254, case 46. Wilkinson v. Hall, 3 Bing. N. C. 508; S. C. 4 Scott, 301.

(c) Wilkinson v. Hall, 3 Bing. N. C. 508; S. C. 4 Scott, 301.