author: Swift, Ch. ,T. Hosmeb, J. Gould, J.

text:
    Shelton and others against Darling.
    THIS was an action of assumpsit on a bill of exchange, drawn by Darling <$• Chapman, on the defendant, and accepted by him ; the plaintiffs claiming as indorsees. Counts were added, for money lent to the defendant, at his request for money had and received to the plaintiff’s use ; and for money laid out and expended, by the plaintiffs, at the request" of the defendant, for his use.

      J}. being the agent of if., procured,for the purpose of raising money for his individual use, a bill of exchange to be drawn on him, as agent, which he accepted as agent, and then got it discounted, and appropriated the avails to himself; such acceptance being within the scope of A.’s agency, but without the knowledge of li. In an action brought by the indorsee of the bill against A. in his individual capacity, it was held, that the plaintiffcould not recover on the bill, as the acceptance bound Ji. only; nor on the money counts, fbr he held a written security, valid and uncancelled, on which his remedy must be sought.

      Hartford,

    June, 1818.
    The cause was tried at Nw-Haven, January term 1818# before Trumbull, Baldtcin and Hosmer, Js.
    The bill was as follows : “ Noyes Darling, Esq. agent of the Commission Company. Ninety days after date, please to pay to our own order two thousand dollars, value received, and charge to account. Your obt. sts.

      Darling & Chapman.”

    « Accepted. Noyes Darling, Agent G. C.”
    The bill was indorsed by Darling & Chapman to the plaintiffs. At the time when it was drawn and accepted, the defendant was the agent of the Commission Company, duly appointed ; but he procured it to be drawn and indorsed, and accepted it, for his own use and benefit, and not for the use or benefit, nor with the knowledge or consent, of the company. Immediately after his acceptance, he procured the bill to be discounted by the plaintiffs, and applied tha avails to his private use. The Commission Company had been incorporated by the legislature of New-Fork, and was, at the time of this transaction, a body politic. The act of incorporation and the by-laws of the company were read in evidence, to shew the powers of the defendant as agent. Upon this state of the case, the plaintiffs claimed, first, that the defendant did not, by virtue of his acceptance, bind the Commission Company, but himself in his individual capacity j secondly, that if the Commission Company were bound, still the defendant was liable, in his individual capacity, in this action, to refund to the plaintiffs the money, which he had received of them. The defendant contended, that he, being the agent of the Commission Company, lawfully could, and did, by virtue of his acceptance, bind them, and did not bind himself individually ; and that he was not liable, in this action, to refund to the plaintiffs the money which he had received of them, hut was accountable only to the Commission Company. The court charged the jury as follows: « In this case, it is agreed, that the defendant was the agent of the Commission Company ) and the question is, whether lie was a general, or a special agent ? A general agent is one appointed for the management of the whole, or a particular branch, of the business of his employers. A special agent is míe appointed for some special occasion, or to do some particular act or acts. The authority of a special agent goes no farther than that with which he is expressly invested. But the authority of a general agent is, upon the subject matter of the agency, as extensive as the power of his principal. If you find that the defendant is the agent of the Commission Company, appointed for the general management of the whole business of the company, or of a particular branch, embracing the power of raising money, the company were bound by the bill of exchange, and no action on that bill can be maintained against the defendant; but your verdict, on the first count, must be in his favour. But if you do not find, that the defendant was, in this manner, the general agent of the company, you will find for the plaintiffs on the first count, with damages. As to the second, third and fourth counts, the court are of opinion, that admitting that the plaintiffs have proved all the facts they claim to have proved, the law implies none of the promises, which they have stated in those counts ; and your verdict on them must be for the defendant.” The jury accordingly returned a general verdict for the defendant; and the plaintiffs moved for a new trial on the ground of a misdirection.

      Daggett and JV*. Smith argued in support of the motion.
    They referred, in the course of their arguments, to Cary v. Webster, 1 Stra. 480. Sadler v. Evans, 4 Burr. 1984. Duller v. Harrison, Cowp. 565. Perkins v. Smith, 1 Wils. 328. Waring Sf al. v. Favenck & al. 1 Campb. 85. Kymer & al. v. Suwercropp, 1 Campb. 109.

      Staples and L. E. Wales, contra,
    cited The Manhattan Company, v. Lydig, 4 Johns. Rep. 377.

   Swift, Ch. ,T.

It appears in this case, that the defendant, as agent for tiie Commission Company, accepted a bill of ex, change, for an object apparently within the scope of his agency, by which he rendered the company liable on his acceptance. The plaintiffs, indorsees of the bill, have brought this action against the defendant, in his personal capacity, and claim that they have a right to recover of him, on the ground that he procured the bill to be discounted by the plaintiffs, on his private account, and not for the Commission Company, and that he has received and applied the money to bis own use, without their knowledge or consent. There is no charge of fraud, or allegation of insolvency, to vary the claims of the parties. Whether a party to a contract made by an agent, in the name of his principal, so as to bind him, but actually made for the benefit of the agent, may. in certain cases waive his claim on the principal, and bring his action against the agent, as upon Ms personal contract, is a question not now necessary to consider or decide : for there aré other objections decisive of this action. The plaintiffs now hold a bill of exchange, uncancelled, against the Commission Company, of sufficient ability to pay it, accepted by the defendant as their agent, so as to be obligatory upon them, and to whom he is accountable for the money received j by which instrument it is in the power of the plaintiffo to recover of the Commission Company, the same money for which this action was brought. While a party holds an instrument as a security for his debt, he cannot resort to the action of in-debitatus assumpsit, for money had and received 5 for the express written contract, extinguishes the implied one : and the plaintiffs are as much precluded from bringing this action against the defendant, as against the Commission Company ■; for they hold a valid instrument to secure the money which they seek to recover in this action. The plaintiffs, then, cannot be entitled to recover on either of the indebitatus counts. 1 They cannot recover on the count for the bill of exchange ; for that was never accepted by the defendant in Ms private capacity, but as agent for the Commission Company, so as to be binding on them.

In this opinion, Tkvmbvii, Esmond, Smith, Bbaix-abd, Petebs and Chatman, Js. severally concurred.

Hosmeb, J.

William 8. Darling and Lebbeus Chapman drew a bill at ninety days, payable to their order, on Noyes Barling, as agent to the Commission Company. The bill was drawn at the request of Noyes Darling, and was accepted by him, as agent of said company. The sum for which it was drawn he received. It is admitted, that he was the general agent of the company; and it is not denied, that he was authorized to raise money to effectuate the purposes of his agency. The bill of exchange has long since fallen due, has never been paid, and is held by the plaintiffs as the indorsees ©fit. They now bring their action against the defendant, to recover of him the consideration of it, paid by Darling and Chapman.

The fundamental enquiry in this case is, whether the Commission Company is bound by the acceptance of the bill ? It is admitted, that the act of Noyes Darling, their general agent, in accepting the bill, is obligatory upon them. On this point, no question has been made ; and therefore, I shall take it for granted. The bill, not being waste paper, but in legal force binding the company, being retained by the plaintiffs as a valid claim, on what ground can the consideration money be recovered back, by any person ? More particularly, what demand for the money can exist in favour of the plaintiffs, who never paid it to the defendant, and whose only right is derived through the medium of the bill of exchange ? So long as they possess a valid contract against the Commission Company, a contract that was originally good, and which remains the subject of a legal suit; there is no foundation for Chapman and Darling to demand thé consideration money paid by them; much less for the plaintiffs, who never had any claim to the money for which they sue. The same remark would be just, if the bill of exchange had never obliged the company. In that event, it would be obligatory on the, defendant. White & al. v. Skinner, 13 Johns. Rep. 307. Burnett v. Kensington, 7 Term Rep. 207. Clement v. Brush, 3 Johns. Cas. 180. Green & al. v. Beals & al. 2 Caines 254. Appleton v. Binks, 5 East 148. Mauri v. Heffernan, 13 Johns. Rep. 58.

It is asserted by the plaintiffs, and on this they rest then claim, that the defendant raised the money demanded for himself, having meditated a fraud on the Commission Company ; and that he has failed to account for it with his principals. To this observation the most satisfactory reply can be made.

In the first place, the affirmation is utterly inadmissible. The defendant, as agent to the Commission Company, has a right to account with them, by the production of his books under oath. It never, then, can be assumed, in the present action, where this testimony is shut out, that, the money has not been faithfully applied to the use of the Commission Company. It would he an unwarrantable perversion of a suit founded in the equity of the plaintiffs’ case, to permit a rc covery on the foundation of facts, which the defendant cannot, by ariy legal possibility, be prepared to investigate.

Let it, however, be admitted, that the defendant has prac-tised a fraud on his employers, no fraud has been practised on the plaintiffs. They hold a valid security, pursuant to the contract of the original parties; and they elect to hold it. They have all the advantages which the agreement contemplated, and have suffered no imaginable damage. I do not admit, if an agent conduct mala fide, to the disadvantage of his principals, that he is not to be regarded as agent. The principal is often subjected to the contracts of his general agent, w here he has transcended the authority actually given. Fenn v. Harrison, 3 Term Rep. 760.

It has been said, that the defendant not having paid the money received by him, to the Commission Company, the party paying has his election to sue the company, or to recover back the money of the defendant. The assertion is utterly unfounded. It is not true, as seems to have been sppposed by a learned judge at nisi.prints, that “ till the money is paid over, the servant receives it to the payor’s use.” On the contrary, it has been correctly decided, that the payment of money to an agent, is, in law, eo instanti, a payment to the principal.” The Duke of Norfolk v. Worthy, 1 Campb. 339. Passmore v. Mott, 2 Binney 201. The assertion, at any rate, is inapplicable to this case. The plaintiffs were not the party paying the money ; and the bill still retained by them in plenary force, precludes all claim for the consideration advanced for it.

I am clear, that a new trial ought not to be granted.

Gould, J.

The question, how far agents may, under circumstances, be personally liable to refund monies, received in the regular course of their employment, does not arise upon the present motion. Assuming, as for the purpose of the present argument we must, the facts, upon which the defendant relied, at the trial, this is not a case in which the plaintiff has, either rightfully, or wrongfully, received money for his principals ; but one, in which he has obtained it for himself, by acting in their name, but not for them— and by thus deceiving the plaintiffs, on the one hand, and violating, on the other, the confidence reposed in him, by those, for whom lie professed to act. And the claim of the plaintiffs is, not that the defendant has received from them, for the use of the Commission Company, a sum of money, which he has neglected to pay over, or account for : but, that he has, by misrepresentation, and under the false pre-tence of acting for the company, obtained the money, for his own use, and now holds it of his own wrong*

But it is contended* that the plaintiffs cannot recover against him, upon this ground ~ in as much, as they accepted from him, at the time of advancing the money, a valid and sufficient security against the company* For as the defendant was the general agent of tiie company, and as thcy% therefore, cannot deny his authority to accept the bill, on their account, as against the,plaintiffs, who are bonajide holders, it seems to be inferred, that the plaintiffs cannot deny it, as against the defendant himself: that is, that he may protect himself against their claim under the very authority* which he has abused — -the very trust* which lie has violated. But the defendant, as between the company and himself, had, confessedly, no authority to use their name, for his own private benefit: and therefore, though he had, as between the plaintiffs and the company, legal authority to bind the latter* by accepting the bill in question ; yet, in point of fact, he could not rightfully do it. And what I deem to be the fallacy of the reasoning in his favour? consists in not properly distinguishing between the relative situations and rights of the different parties concerned in the transaction. A man, clothed with a general authority to contract for others, may, by professing to act in pursuance of that authority, w hen he, in fact, does not, bind them, in favour of third persons* who confide in his professions. But it would seem to me, a reproach to the law* to hold, that he may thus acquire any right, or exemption from liability, for himself. Now* if the defendant had possessed no authority to bind the. Com mission Company, in any case 5 he would* doubtless, have been personally liable to the plaintiffs, in tin present instance, for the money, he obtained from them. If, then, as we are now assuming, he actually obtained it* not for the company, but for himself — by wantonly transcending his rightful authority, and violating his trust ? he surely ought, upon principles of natural justice* and* as I conceive, of law also, to be subjected, as if ha had had no authority, at ail. Ami though, if the company had required him to account with» them, for the money, as having been obtained, in their name, and upon their credit, he might have been precluded, by his own act, from denying it to be theirs i yet, if in the event of its having been lost, or stolen, or destroyed, he had charged it over to them, as their property j they, most certainly, might have defeated the charge, by showing the true state of the facts, as the plaintiffs now claim them to be.

What reason is there, then, why the plaintiffs may not also avail themselves of those facts, in the present action l At the time of discounting the bill, the defendant led them to believe, that they were advancing money to the Commission Company, upon the company's application, and voluntary security. They now find, that through a deception prac-tised upon them, by the defendant, they have, in reality, advanced it to him, in his individual capacity — upon a security, which, though valid in law, was surreptitiously, and dishonestly, furnished by him, against the company. And they have a right, I think, to say, We never consented to advance our money to this defendant, nor to accept a security, thus unjustly obtained.”

It is admitted, that the Commission Company are liable, upon the acceptance, made in their name but at whose election are they to be subjected ? The plaintiffs may, undoubtedly recover against them : but can the defendant, who created this liability, by a breach of trust, oblige the plaintiffs to resort to the company, whose confidence he has abused, and to rely upon a remedy, which he has furnished, by practising a deception upon one party, and a fraud upon the other ? I think not. If one, who has stolen a bank-note, or a bill of exchange, transferable by delivery, passes it to a bona fule receiver f the latter has a complete and effectual remedy, against the bank, in the one case, and the prior patties to the bill, in the other. But is it, therefore, to be concluded, that the holder, upon discovering the fraud — (a fraud, committed, not upon himself, but upon the former owner of the note, or bill,) cannot recover back from the thief, the consideration of the transfer ? If goods stolen are sold, by the thief, in market-overt; the honest purchaser has whai is even better than a mere remedy, or right of action, against any one : he has the legal title to the goods, and may hold them against all prior claims of ownership!, But it will "hardly be contended, that he cannot recover back from the seller, the consideration paid for the goods. Indeed, I regard it as a sound general position, that no one can claim, or defend, under a contract made by himself, for the purpose of defrauding third persons. It appears to me, therefore, that the conclusion drawn in favour of the defendant, from the liability of the company upon the bill, is unfounded.

It has been suggested, that however the case might otherwise be — the circumstance, that the security, accepted by the plaintiffs, was written, must, at any rate, preclude them from recovering, in the present action. But that circumstance can, surely, make no difference in the case. Indeed, it is a point, settled by authority, that if one party to a contract has, by fraudulent representations, been induced to give credit, upon the written security of the other, or of a third person ; he may, upon discovering the fraud, waive the security, and even before the term of credit has expired, maintain an action against the fraudulent party, either upon the original consideration, or to recover back what he has advanced — according to the nature of the case. Hogan v. Shee, 2 Esp. 522. Wilson v. Force, 6 Johns. Rep. 110.

But it is strongly urged, that, as the plaintiffs have all the security, they expected, and have sustained no damage j they have no right to recover, in this action. If this were an action on the case for fraud — in which actual damage is essential to a right of recovery — the objection might be material ; but it does not apply to the case now before the court. This action is not brought for damage, sustained by the plaintiffs, through fraud, or by the breach of any express contract; but in disaffirmance of a discount, fraudulently obtained, by the defendant, under a false pretence, and in fraud of other persons. In the case, already alluded to, of a bank-note, or a bill of exchange, stolen and transferred to a bona fide receiver, he is not disappointed, in what he expected to receive : lie has all the security, he desired j tiiat security is an effectual one ; and he sustains no damage, by parting witli property in exchange for it. But it appears to be admitted, that he may, nevertheless, recover back the consideration of the transfer. And as a contract in fraud of third persons, is utterly corrupt and illegal, as to those parties to it, who arc privy to the fraud; I take the rule to he* that no such party can avail himself of it, as a ground, either of claim, or protection, against an innocent party. Upon this principle, the defendant can take no advantage of the form of the transaction, out of which this @uit has arisen. The money advanced to him, he obtained, upon a consideration, which, upon his part, was altogether vicious and illegal. And if lie can protect himself, in this action, under the liability of the Commission Company ; the plaintiffs will, injustice to themselves, be constrained to resort to the company for payment: and thus the very fraud, which the rule relating to such transactions is intended to prevent, will be effected. In answer, then, to the enquiry, what actual injury have the plaintiffs sustained ? I observe, that they complain of no such injury : but that the defendant has, by dishonest and unlawful means, obtained from them, a sum of money, which he cannot, in conscience, retain. And it is material to add, that a recovery, in this action, would restore all parties to the situation, to which both law and justice require, that they should be restored — i. e. the same situation, in which they were, before this corrupt transaction took place.

II is still insisted, however, that the money received by the defendant, is the property of the Commission Company ; and that he cannot be deprived of the privilege of accounting with them, for it, upon his own oath. The latter branch of this objection is a mere conclusion from the former, and requires, of course, no distinct answer. But how can the defendant be permitted to object, that the money is the company’s property, under the admission, upon which the whole argument proceeds, that he obtained it exclusively for himself, and appropriated it to his otan sole use ? It is impossible. It is to no purpose, to say, that if the company were now claiming from him, an account of the money, as their property, he would be estopped to deny their claim. The same thing might be said, if, at the time of obtaining the money, in their name, he had never been their agent, for any purpose. And what seems decisive against the objection, is, that if the company should be compelled to pay the bill; they might, undoubtedly, recover the amount back from the defendant, as money, paid by them, to his use.

The suggestion, that if the company should claim the money, against the defendant,,as theirs, a recovery against him, in the present action, would not bar their claim, is manifestly groundless. By prosecuting such a claim, they would, necessarily, recognize bis agency, in accepting the bill, and sanction the act as their own. And it is good accounting, by an agent, to show, that the funds of his principal have been taken out of his hands, either justly or unjustly, by order of law. Indeed, if this objection could prevail, it would defeat every action, brought to recover back money from an agent, who bad obtained it, by extortion, violence, or any species of illegality, under pretence of acting for his principal.

Private justice, public policy, and the interests of morality, obviously require, that a recovery should be had, in all cases like the present, against the fraudulent party. No one could justly complain of such a result ; for no one could be injured by it. And in my judgment, the legal principles, to which I have adverted, would fully justify it. I am, therefore of opinion, that the jury were misdirected, and that the plaintiffs are entitled to a new trial.

New trial not to be granted.

         Sir John Pratt, Ch. J. in Cary v. Webster, 1 Stra. 480.


source: Caselaw Access Project

author: Swift, Ch. J. Smith, J, Hosmer, J. Gouxn, J.

license: Public Domain

text:
    Wakeman and another against Banks.
    THIS was an action of ejectment. The ouster was laid on the 16th August, 1816. Plea, JVb wrong nor disseisin.

    The cause was tried at Fairfield, December term 1817, before Edmond, Smith and Gould, Js.
    On the trial, the plaintiffs gave in evidence a mortgage deed to them, executed by the defendant, on the 5th of April 1815, conditioned for the payment of two notes for 750 dollars 94 cents, each. It was agreed, that the defendant, at the time of executing the deed, was, and ever since had been, in possession. No other evidence was given. The plaintiffs claimed, that the court, on these facts, should direct the jury to find a verdict-in their favour. The defendant claimed, that it was competent for the jury, on these facts, to give their verdict in his favour, on the ground that he was, of course, not guilty of a disseisin, but that a licence to remain in possession might be presumed. The court directed the jury to find a verdict for the plaintiffs ; which they accordingly did. The defendant moved for a new trial, on the ground of a misdirection ; and the motion was reserved for the advice of the nine Judges.
    A mortgagee may bring an action of ejectment against the mortgagor in possession,without a previous demand, or notice to quit.
    The execution of a mortgage deed, and the subsequent possession of the mortgagor, furnish no presumption of a li-cence from the mortgagee to the mortgagor, to remain in possession.

      Hartford,

    June, 1818.

      Sherman, in support of the motion»
    contended, 1. That disseisin is always a tort. Co. Litt. 153. a.

    2. That the possession of the mortgagor is lawful. This appears from several considerations. In the first place, he gains no title by time, his holding not being adverse. Secondly, he cannot be sued in trespass. Thirdly, he is not accountable for the profits. Fourthly, he is the beneficial owner of the land. 1 Tow. Mart. 221.
    3. That a lawful possession always entitles the tenant to notice — i. e. a countermand of his right to remain there. S Black. Comm. 149. ,150. A technical notice to quit, may not, indeed, be necessary ; Keech v. Hall, Doug. 21. Thunder v. Belcher, 3 East, 449. but some act determining the will, is necessary. In this case, there was none.
    JV*. Smith, contra,
    relied upon Rockwell & al. v. Bradley, & Conn. Rep. 1. as having settled this point. He urged, also, the established and immemorial practice in this state, according to which the mortgagee may sue the mortgagor in ejectment, without a previous entry, or demand. He insisted further, that possession by the mortgagor, after giving the mortgage deed, did not conduce, in any degree, to prove a licence. The mortgagor’s possession is the very act, which we complain of as a disseisin 5 and is it to be inferred from the mere existence of that wrongful act, that we gave him a licence to do it 1

   Swift, Ch. J.

All the doubt and difficulty in this case, have arisen from not considering the true nature of the estate of the mortgagor, and comparing it to a tenancy at will, •or at sufferance; and thence inferring there must be notice to quit, before action can be brought, because in these cases such notice is necessary. But I apprehend, the estate of the mortgagor, where there is no express agreement to continue. In possession, in no measure resembles a tenancy at will, or at sufferance.

A mortgagor is not entitled to emblements, is not accountable for rents, and is not liable to an action of waste. He can dispose of the whole, or any part, of the estate 5 and it will descend to his heirs. He is considered, for all purposes, to be the owner of the land, excepting that the mortgagee may recover possession of it to enforce the payment of the debt, for which it is pledged as a security. In an action of ejectment, the demise may be laid antecedent to the determination of the will, even to the time when the mortgage became forfeited : but in the case of a tenant at will, the demise cannot be laid antecedent to the determination of the will.

1 Term Rep. 383. So the tenant at will, or at sufferance, is entitled to emblements, is accountable for rent, liable to waste, and if he assigns, the very act terminates the estate, and the purchaser is a trespasser. So committing waste, or the death of either of the parties, puts an end to the estate. This clearly shews, that there is no resemblance between the estate of the mortgagor and a tenancy at will: and it may as well be said, that the mortgagor is entitled to emble-ments, because a tenant at will is, as it can be, that he is entitled to notice to quit, because a tenant at will is. The estate, then, of a mortgagor is peculiar to itself — to be governed by rules applicable to it, and bears no analogy to any other species of estate. There is no inconsistency, or impropriety, in saying, that one of these rules is, that the mortgagee may sue the mortgagor in ejectment, without notice to quit. Indeed, this is compatible with the nature of the estate : for it is but a security for a debt; and it is a well known principle, that a suit may be brought against a debtor, without giving him notice. Such has been the immemorial practice in this state. Such is the common law, as settled by the decisions in England. The case of Keech v. Hall, JJoug. 21. is to point.

That was an action of ejectment, by the mortgagee, against the lessee of the mortgagor, under a written lease for seven years, at rack rent j the lessee having no notice of the mortgage, and the mortgagee no notice of the lease s and there was no notice to quit. Lord Mansfield considered the lessee to stand on the footing of the mortgagor, and says, the question turns on the agreement between the mortgagor and mortgagee j that when the mortgagor is left in possession, the true inference to be drawn, is, am agreement that he shall possess the premises at will, in the strictest sense ; and therefore, no notice is ever given to quit. One would think, that this doctrine could hardly be laid down to more explicit terms : it is confirmed by the Court of King’s Bench, in 3 East 449. and recognized by all the elementary writers on the subject.

It is, however, contended, that these cases are not applica^ ble, because the action was brought against the lessees of the mortgagor j that the mortgagor, being tenant at will, could not transfer any estate ; that the act of leasing or assigning destroyed the estate, the lessee became a trespasser, and was not entitled to notice to quit. It is true, the assignment of the estate by a tenant at will, terminates it: but such is not the case of a mortgagor. It will not be denied, that a mortgagor may transfer his whole title j and the purchaser, on taking possession, will stand in his shoes, and may redeem. Of course, he may transfer a part, or may lease for a less term than the whole estate ; and his grantee or lessee will have a complete right to redeem, The doctrine, then, is not correct, that there is no privity between the mortgagee and the lessee of the mortgagor; and that the mortgagor cannot create an under-tenancy. The mortgagor lias precisely the same power to transfer his equity of redemption, as any other estate ; and the purchaser succeeds to all his rights. The estate, like a tenancy at will, does not terminate by an assignment. Such clearly was the opinion of Lord Mansfield, in the case of Ketch v. Hall; for he places the lessee on the same ground as the mortgagor; and the contrary doctrine is drawn from the mistaken idea, that a mortgagor is a tenant at will.

It has been supposed, that Lord Mansfield has laid down the proposition, that a mortgagor is tenant at will in the strictest sense, and not entitled to notice to quit: but as a tenant at Will is entitled to such notice, the proposition is incorrect. Lord Mansfield does not say, that the mortgagor is tenant at will, in any sense ; he only says, that he possesses the premises, in the strictest sense, at will: not that he is tenant at will, in a technical sense ; but that he is so entirely at the will of the mortgagee, that he is liable to be sued in ejectment without notice to quit; or, in other words, that his possession may be treated as lawful or tortious, at the will of the mortgagee. Viewed in this light, there is no inconsistency in the proposition.

It has been insisted on, that Lord Mansfield, when he said, the mortgagor possessed the premises, in the strictest sense, at will, meant only a tenant at will in the original sense, as contradistinguished from a tenant from year to year ; and by notice to quit, referred only to the six months notice required b> bo given to the tenant from year to year, and therefore the Case of IC cvh v. Hall does not support the doctrine that a mortgagor is not entitled to such notice to quit, as is required in the case of tenants at will, in the proper sense. If this could be made out, and if it also appeared, that the defen-danfein that case received such notice as must be given to tenants at will, in the original sense; then it would prove something ; for it might then be said, that the defendant; not being tenant from year to year, was not entitled to six months notice to quit; but being, in the strict sense of the word, tenant at will, and having received such notice to quit as the law requires in such cases, he was liable to be ejected by the plaintiff; for as judgment was rendered for the plaintiff, it must appear, that the defendant had some notice to quit, to give the case the effect and construction contended for. Hut this is all a fallacy, without a word in the case to warrant the supposition. In the first place, Lord Mansfield did not mean a tenant at will iri the strictest sense, or in any technical sense ; he merely speaks of the mortgagee in his proper character. In the second place, he did not refer to a six months notice to quit, but to notice generally, comprehend* ing every act that will amount to notice to a tenant at will. in the third place, it appears that no notice to quit, of any kind, was ever given. It is not stated, that six months notice was not given, and that other sufficient notice was given ; but that there was no notice to quit. Of course, it is immaterial whether the defendant was tenant at will, in the strictest sense, or tenant from year to year ; or what was the kind of notice to which Lord Mansfield referred : for as no notice was given, the plaintiff could hot have been entitled to recover on the principles assumed. But the court did render judgment in his favour, w hen there was no notice at all to quit. The consequence then follows, that the doctrine that a mortgagor is liable to be ejected without notice to quit, w as settled by the case ahovementioned.

It is said, the possession of the mortgagor will not bar the right of the mortgagee, or prevent him from selling; of course, it cannot be deemed adverse. But suppose the mortgagor should deny the title of the mortgagee, refuse to surrender possession, and <lo every act in his power to make it adverse ; this would not give him a title by fifteen years possession» or prevent the mortgagee from selling. Judge Buller says, (1 Term Rep. 383.) “ The mortgagor cannot, the will of the mortgagee? do any act to disseise him : and the reason is, because the mortgagee? so long as ho receives the interest? is? virtually, and in the eye of the law, in possession,” Of course, whether the possession he adverse or not, it makes no difference with the rights of the mortgagee, and proves nothing.

It has been considered to be repugnant to the principles of natural justice? that the mortgagor should he sued without notice to quit. A mortgage is the security for a debt, or the performance of some collateral duty. When the debt is due? the mortgagee may, at the same time, pursue all his remedies ; lie may sue for the debt j he may petition to foreclose the equity of redemption ! and he may bring ejectment †⅝ recover possession of the demanded premises. It will be agreed, that he is not bound to give notice before he sues for the debt, or petitions to foreclose. Why, then, must he do it, before he brings his writ of ejectment l There is as much reason in one case as in the other j and precisely the same hardship in all.

On the whole, [ am satisfied that the decision in the case of Rockwell v. Bradley was correct. I then thought this question was settled. If it was not then settled, 1 trust it now is ; and I. hope this source of litigation is now exhausted.

Trumburu, Ebmonb, Brain aru and Peters, Js. were of the same opinion.

Smith, J,

I think the court ought to have instruct ed the jury, in this case, that from the length of time tint defendant was permitted to remain in possession, since executing the mortgage deed, when taken in connexion with the nature of the conveyance and general usage, 1 hey would he warranted to find a licence to remain in possession for an. indefinite period. And in case they found such licence, as no countermand of it w as claimed, their verdict must be for the defendant.

If this point of fact ought not to be left to the jury, it must he either because, first, the evidence is not adapted to to prove the fact: or, secondly, the fact itself is immaterial-

in the first place, then, I would enquire, whether this species of evidence is not well calculated to satisfy the mind, that such licence was actually given ?

The delivery of a deed, whether mortgage, or a clear deed, is tantamount to livery of seisin, and will enable the grantee to bring forward his action immediately, against the grantor, who shall withhold possession from him. But when the. possession is not resigned up, agreeably to the terms of the deed, and the grantor is suffered to remain in possession, while the grantee stands by, looking on, for a considerable period, making no objection, some degree of presumptive evidence will be afforded, that the grantee agreed to let the grantor remain in possession. This will be more or less convincing, as thé period of permission may have been in point of duration, when taken in connexion with the kind of conveyance and general usage on these subjects.

in case of a clear deed, we could hardly account for the conduct of a grantee, who should suffer his grantor to remain In possession ; and yet, should he do it, for a considerable period, it would afford some evidence that lie had agreed to let him remain there. But in regard to a mortgage, it is far otherwise. In this case, we could hardly account for the conduct of a mortgagee, who should wish to take possession, provided the pledge is sufficient to secure the debt ; and this is generally understood to be the case, before there is any accumulation of interest,: which may afterwards increase the debt, till the security becomes insufficient. By permitting the mortgagor to remain in possession, all trouble of accounting for rents and profits is saved ; and the mortgagor can manage his land to his own advantage, while it remains a pledge to the mortgagee, who usually wants nothing but bis principal and interest. From the nature of the conveyance, therefore, the mind is prepared to give full effect to other evidence. And when we further take into consideration, what is matter of general notoriety, that almost universally such licence is given, and with these facts, find the mortgagor in the quiet and peaceable possession, for a considerable period after giving the deed, the mind cannot resist the conclusion, that an agreement was made, either tacit or express, for the mortgagor to continue in possession. I consider the evidence, therefore, as well calculated to prove the licence. - -

The next question, then, is, whether the licence, if proved, forms a defence to the action.

There has been much ingenious, and, to my mind, use* Jess, speculation, among the learned, both in England, and this counlry, as to the nature of the estate which a mortgagor has, thus left in possession. At one time, he has been considered as tenant at sufferance ; at another, a tenant at will ; sometimes, an agent to the mortgagee to receive the rents and profits ; then, a tenant at will, in the strictest sense; at another time, like a tenant at will; and at another, he is said to be a tenant at will, to some purposes, and not to others. In the case of Birch v. Wright, 1 Term Rep. 378. 383. Mr. Justice Butler says, he is neither tenant at will nor receiver, and that it is not necessary for him to be either; for his character as mortgagor is so well known, that to call him such is sufficient. And this, in my judgment, is, after all, the nearest correct; though his character as mortgagor has its principal application, among other facts and circumstances, in establishing the fact of licence. When this is found, I think it would be still more correct to say of him, that he is in possession without any interest whatever in the land, by licence from the true owner, for an indefinite period, determinable only at the pleasure of the landlord. And in jny opinion„there is one striking difference between a tenant at will and that of a mortgagor thus left in possession, which has not been noticed in any of the elaborate discussions on the subject. Every estate at will is at the will of both parties, landlord and tenant, so that either of them may determine his will, and quit his connexion with the other, at his pleasure. 2 Black. Comm. 145. This cannot be the case where a mortgagor is left in possession under the usual agreement between mortgagor and mortgagee. I consider it as making a part of the agreement usually understood in these cases, that the mortgagor shall continue in possession of the estate, taking all necessary care of it, paying interest to the mortgagee so long as the mortgagor shall cliuse. And in case the mortgagor, after being thus left in possession, should abandon it, the mortgagee might, if he pleased, abandon it also ; and the law would still consider the possession as in the mortgagor, so that he would, nevertheless, be liable to pay interest on the debt, and could not compel the mortgagee to account for the rents and profits on the estate.

The question, then, arises, whether a man can be guilty of a disseisin while in possession of land under a licence from the owner for an indefinite period? Is proof necessary to support the negative of this proposition ? Is it necessary to prove, that a disseisin is a tort, as much so as a trespass ; and that there can be no tort, no trespass, by a person acting under a licence ? As well might a man bring trover for a personal chattel, which he had loaned to another, and support the allegation of conversion, by mere proof of the loan, without a demand and refusal, as to bring an action of ejectment, and support the allegation of disseisin by proof of entering under an indefinite licence, unaccompanied with proof of a countermand of such licence.

I consider it, therefore, as perfectly clear, that while a roan acts under a licence from the owner, he cannot be guilty of a disseisin ; and it is equally clear, that where a man enters by licence from the owner for an indefinite period, such licence continues until countermanded, either by express declaration to the party, or some act of notoriety, such as entering upon, and taking possession of, the land,

I apprehend, that all the confusion and seeming contradiction, which we meet with in investigating this subject, has arisen from not distinguishing accurately between the well known practice, in so common use in England, of giving six months’ notice to quit in case of tenancies from year to year. and that kind of notice which may terminate a tenancy at will, or at sufferance, or countermand a licence. And w hat-ever may have been said about notice to quit not being necessary, in case of tenants at will, at sufferance, or in case of a mortgagor left in possession, I apprehend, tiiat no English judge has ever intended to say, that an action of ejectment or trespass will lie against any tenant, of any description, until his estate is first determined, in some way known to the law.

I do not consider a tenant at will, at sufferance, or a mortgagor in possession by licence from the mortgagee, as being entitled to notice to quit, agreeably to the common import of that phrase. The lessor may determine the estate of the lessee at will, not only by an express declaration that lie shall hold no longer, but hv any notorious act of ownership. 2 Black. Comm. 146. Should or notice given to the tenant, that i (¡oclaraíio!) be made, e is no bmger to consider himself as tenant to the lessor; still it would not come within the well known doctrine of six months1' notice to quit, applicable solely to tenancies from year to year f which, indeed, almost all tenancies at will are now' construed to be. So a tenancy at sufferance may he determined, by a formal entry on the land, without the notice to quit; and so may a licence be countermanded, without such notice. All I should insist on, in any of those cases, is, that a man shall not be trealed as a tort-feasor, who has done no wrong; or found guilty of a disseisin, while in possession as a tenant, or by licence.

I should have no doubt of the correctness of this view of the subject, was it not for an opinion I find expressed by our learned Chief Justice, in the case of Rockwell v. Bradley, 3 Conn. Rep. 5. I find it there advanced, that “ There is no inconsistency in the agreement that the mortgagor may continue in possession, liable to a suit at the will of the mortgagee.” And again, after citing the case of M'hitcacre d. Boult v. Simonds, 10 East 13. as an authority in proof of the position, he adds: “ So here, the mortgagee indulges or suffers the mortgagor to remain in possession, reserving the right to bring an action of disseisin against him at pleasure, without notice or demand.” Though this precise view, is unsupported by any other judge, who has given an opinion at large in the case, and is somewdiat different from any of the ingenious theories which we find in the books ; yet I consider it as entitled to the highest respect; and being new, it may require a more particular examination than might be otherwise necessary.

The case of Whiteacre d. Boult v. Simonds, docs not appear to me to support the position for which it was cited. That case turned upon the construction of two letters, which passed between the tenant and the landlord’s agent. And it was said by Justice Le Blanc, that if this were to be considered as a licence to the tenant to continue in possession, to be sure be could not be treated as a trespasser, until the licence was determined. But upon the construction of the letter, coupled with the situation in which the parties stood at the time, I think it is dear, that the landlord neither intended to grant him a licence, nor to consider him at all as a tenant.” And all the other judges hold similar language. Lord Ellenborough, Ch. J., says, “ I cannot construe the language of this correspondence, on the part of the landlord, as constituting a new tenancy between him and the defendant, after the time of the notice to quit, or a waiver of that notice $ nor as a licence for the purpose now insisted on.”

I have cited enough to show, that the case turning upon a point of construction, upon facts and circumstances bearing no analogy to the present, can have no bearing upon any of the important questions which arise in this case. If then, the case cited does not apply to the one now under consideration, I would examine the position advanced by our learned Chief Justice, upon principie. And here I must be allowed to say, that I feel great doubt whether there is not some small degree of inconsistency in the agreement, that the mortgagor may continue in possession, liable to a suit at the will of the mortgagee. It would seem to me, that the mortgagor, while continuing in possession by the agreement of the mortgagee, could not be guilty of a disseisin ; and of course, not liable to an action : and if not guilty, and liable to damages as a tort-feasor, an agreement to be to a suit as such, at the will of the mortgagee, would, mind, appear rather inconsistent. I apprehend, th agreement made between two parties, that one shall 1 right to sue the other at pleasure, will support an ai unless the defendant is in fact guilty as charged in the ration ; and whether guilty or not, will depend on proof in court, and not on any agreement made out of court. Hut I must confess, that I have never considered it as making apart of the agreement usually understood between mortgagor and mortgagee, that the former shall be liable to a suit at the will of the latter : and it would be strange that there should be such an understanding.

Hosmer, J.

In Rockwell v. Bradley, 2 Conn. Rep. 1, it was determined, on the facts conceded, that the mortgagee might, bring ejectment against the mortgagor in possession, without a previous demand, or notice to quit. From this case, it is, likewise, fairly to be inferred, that the court will not, on Segal presumption, admit, that the mortgagor is in possession by licence of the mortgagee.

The court, at the circuit, in the case now before us, advanced a step further. It was contended by the defendant, that the jury might presume, from the fact of his undisputed possession, combined with the known usage of permitting' the mortgagor to possess, until it became necessary to apply the pledge in extinguishment of the debt, that he held the premises by actual licence. The court withdrew Ibis en-quiry wholly from the jury, and directed a verdict for the plaintiffs.

The decision in Rockwell v. Bradley, lends no sanction to the charge in this case. Three of the judges, in that case, did not concur with the court. Smith, J. gave an explicit opinion, “ that the mere fact of the defendant's continuing in possession, when taken in connexion with the nature of the conveyance, would warrant a jury in finding a licence, unless other circumstances should appear, adapted to remove the presumption arising from that fact.” Judge Goduauh remarked, “ if the court had been called upon to instruct the jury, that from the nature of the plaintiff’s title, from his having left the defendant in possession, and seen him occupy and take the rents and profits, and other circumstances, they were at liberty to presume an agreement between the. parties, that the defendant should remain in possession until demand ; and the court had refused so to instruct the jury ; it would have presented a very different question for our consideration, upon which I give no opinion.” The majority of the court, then, expressed no opinion on the question now before us j and if an opinion was declared by any judge, it, was inapposite to the case then before the court.

If the possession of the mortgagor may be for so short a period, as to lay no foundation for the presumption of a licence to occupy, on the other hand, it ought to be admitted, the occupancy may be so long, that no inference of actual permission to possess, may warrantably be made. This position is unquestionably true, in relation to the enjoyment of an estate, under the eye of the absolute grantee ; but, a fortiori, it is undeniable, in reference to mortgagors, who, according to the general understanding of grantees on condition, are permitted to retain the possession.

A tacit assent may be inferred from inaction, or forbearance of acting. Pow. on Cont. 131 to 135. Length of possession alone, constitutes a ground on which an absolute title by deed may be presumed. The foundation of this presumption of fact, rests on the act of occupancy, coupled with the apparent acquiescence of the former proprietor. On the same basis, the delivery of a deed has been presumed, and payment has been inferred. I forbear to cite cases on a subject so obvious and familiar.

The principle that a tacit asser* may be presumed from forbearance of acting, is deeply rooted in human nature. The mind is often as intuitively certain of a fact, from the silent act of omission, as from the positive existence of circumstances. On this head there is nothing1 technical, or artificial. The inferences of the fire-side and of the jury-bench, are the same. Believing and disbelieving are simple-acts of the mind, which admit neither of definition nor description. Every person must judge of their nature from Isis own experience.

The court, at the circuit, must have gone the length of deriding, that from the possession of the mortgagor for a long period, and the silence and forbearance of the mortgagee, not a scintilla of proof resulted. If the circumstances in the case before us, had even a tendency to prove a licence, they ought to have been left to the consideration of the jury, to whom it alone belongs to determine upon their precise force and effect. Gibson v. Hunter, 2 H. Black. Rep. 297. This observation is emphatically correct here, where the court is prohibited from expressing any opinion on questions of fact submitted to the jury. 2 Conn. Stat. 106. In the case of Jackson v. Longhead, 2 Johns. Rep. 73. Judge Liyixgstox, with whom the Court concurred, expressed himself in the follow ing manner : “ It is sufficient for my purpose, that the mortgagor occupies with the mortgagee’s consent, and that by a perfect understanding between them, he uses the premises as liis own.” This was the declaration of an inference warranted from the occupation of the mortgagor, and the apparent acquiescence of the mortgagee, and resulting from the nature of their relation, and the unquestioned possession of the former. Attending to the operations of my own mind, I am irresistibly impelled to the same result. The dictates of natural justice, in my opinion, give it their sanction, and prohibit the commencement of an action against the mortgagor, the licensed tenant of the mortgagee, before possession of the premises has been demanded. In my judgment, the court have erred, and a new trial ought to be granted.

Gouxn, J.

The doctrine, that a mortgagor, left in possession, is liable to an action of ejectment, before a demand of possession by the mortgagee, or any other act, or declaration, on his part, amounting to a determination of the tenancy at will, was heard of, in a court of justice, for the first time, in the case of Rockwell v. Bradley. Before the decision in that case, there was no judicial determination, no opinion, nor authority of any kind, to be found, in support of such a rule. And I still think, that it would be quite as difficult to discover any principle, in the law, to countenance the doctrine, as it was to find a precedent for that determination. For, though an opinion appears to hare been entertained, by some of the profession, that ejectment would lie, in such a case; yet that opinion is found to have originated, exclusively, in a sheer misconstruction of a single gratis remark of Lord Mansfield, in Keech v. Hall. The correctness of that dictum is not denied ; but the meaning of it, as has been demonstrated, is merely, that a mortgagor in possession is not entitled to the six months’ notice to quit, required in tenancies from year to year — not that he is liable in ejectment, without any notice, or previous determination of the will. Neither Lord Mansfield, nor any other English judge, or jurist, ever advanced, or recognized, such a rule. Indeed, every legal principle or position in the books, which relates to the point, at all, either directly, or by necessary inference, disproves it.

In the opinion, which I gave in Rockwell v. Bradley, I acknowledged that the dictum in Keech v. Hall appeared to have been understood, in the case of Thunder v. Belcher, in a more general sense, than I then had, and now have, assigned to it. I was led into this admission, by a hurried and partial examination of the latter ease, during the argument in Rockwell v. Bradley. But upon looking afterwards into the report of Thunder v. Belcher, I immediately perceived, that the court had, in that case, understood the observation of Lord Mansfield in Keech v. Hall, regarding « notice to quit,” exactly as I have explained it: they having placed a mortgagor in possession, upon the same footing as a tenant at sufferance, whose possession the law confessedly presumes to be rightful, till the contrary is shown. Indeed, the precise distinction, upon which I relied in Rockwell v. Bradley, is recognized, in terms, by Lord Ellenborough, in Thunder v. Belcher, viz. That a mortgagor is not entitled to “ notice to quit j” and that his lessee Is « not entitled to any notice.” And I am glad to avail myself of the present opportunity, to correct that concession.

It has been said, that by the usage of this state, a mortgagee may maintain ejectment against his mortgagor, without any previous demand of possession. I have no knowledge of any such usage, and have heard no proof of any : I cannot, therefore, persuade myself, that such a general usage has ever prevailed. Recoveries, under such circumstances, may have passed sub silentio, in particular instances ; but there is no pretence, that the point was ever made, except in Rockwell v. Bradley. But the only point, decided in that case, was, that a licence from the mortgagee, could not be presumed, or implied, as matter of law, from the mortgagor’s possession : and this, to say the least, would seem to be carrying the rule quite far enough. But the question here is, whether — admitting, that no licence can be thus implied by law — the fact of a mortgagor’s being left in possession, according to the general and known practice, in such cases, should not have been submitted to the jury, as evidence of a licence.

The whole question, then, is this : does the fact of a mortgagor’s remaining in possession, when taken in connexion with the usual and admitted custom for mortgagors to remain, conduce, in the absence of all direct evidence either way, to prove a licence? Or, (what is equivalent,) to render it probable, that his possession is in pursuance of an original understanding between the parties ? And I am clearly of opinion, that it does. Every transaction, from which any inference is claimed, is to be judged of, according to its essential character. And all agree, that a mortgage is not in the nature of a sale and purchase, but a mere security: And for this single reason, it differs altogether, as regards the present question, from an absolute conveyance, with which it has been so often compared, in the argument. The usual, and therefore, the presumed, object of a purchaser, under an absolute deed, is to obtain immediate possession, as well as title. But in the case of a mortgage of real property, this is seldom, or never, the end proposed. It is so, in no case, indeed, unless there is some understanding or calculation, reaching beyond the simple transaction of giving and taking a mortgage. A mortgage is, essentially, nothing more than a security, which, in the nature of the thing, may be, as it generally is, as effectual, without possession, as with ii. Tin? püi-jvisc of the mortgagee is, not to obtain an estate, to be occupied as his own, or for his own use ,* but simply to secure some existing, or perhaps, contingent demand. This object is not, inconsistent with the mortgagor's continuing in possession ; and he, therefore, as the common practice is, retains it. And lienee arises the understanding between the parties, so often mentioned in the law, that the mortgagor is to remain in possession. Combining, then, these several considerations, that a mortgage is not regarded by the law, or the parties, as an i.lienarion — that the object, proposed in the transaction, does not require a transfer of the possession, and that according to the common practice, and this usual understanding of the parties, the possession remains in the mortgagor | it is impossible for me to doubt, that the defendant’s having been left in possession, according to this prevailing practice, would, at least, have conduced to prove, or have rendered it probable, that his possession was under a licence from the plaintiffs. And, as the court could not, at the trial, consistently with the case of Rockwell v. Bradley, decide the question of licence, as matter of law, in the defendant’s favour ; I am entirely satisfied, that the point ought to have been left to the jury.

But when it is further considered, that, by the English law, and our own, the possession of a mortgagor is, without ahy express proof of a licence, and as a matter of course, presumed to be lawful in every other instance — that it is deemed lawful, (as being consistent with the mortgagee’s rights,) so as to prevent the statute of limitations from running against him, and the statute against selling disputed titles, from invalidating an assignment of his interest — that it is deemed lawful, for the purpose of entitling a husband to curtesy, in the equity of redemption — that it is deemed lawful, for the purpose of enabling the mortgagor to make a lease, that will be valid against all subsequent incumbrances, and against all persons, except the prior mortgagee — that it is deemed lawful, for the. purpose of entitling the mortgagor to all the issues and profits, and of conferring upon him n settlement, and the franchise of a voter: when it is considered, that the possession of a mortgagor is, as of course, presumed lawful, to all these intents : the conclusion in favour of the defendant, upon the prejutnt question, becomes, in my judg-ineni, irresistible. For in all the instances, just mentioned, the mortgagor’s possession is adjudged lawful, from no other circumstances, than what exist in the present case, via. the nature of a mortgage, the relation of the parties, the usual and known custom of the mortgagor’s retaining the possession, and the fact of his having peaceably retained it in the particular instance. And now, to hold, that all these considerations are not to be regarded, even as evidence lo a jury, of his possession’s being rightful, or to rebut the novel presumption of its being tortious, would introduce such an incongruity into the law, as is hardly to be found, I suspect, in any code, professedly founded upon a system of principles.

But it has been contended, that the question in this case, and that decided in Rockwell v. Bradley, are both resolvable into a point of practice, which might he settled, indifferently, either way. To me this is quite incomprehensible. If the question, whether a party is, upon a given state of facts, a trespasser — or, whether certain admitted facts conduce, in law, to prove another fact — depends upon a point of practice ; it must be difficult, indeed, to conceive, what may be deemed a matter of principle. They both, however, depend, in the most unqualified sense, upon those principles of the common law, from which I regard it, as a rule both of wisdom and duty, not to deviate. Whenever innovations upon that system have been introduced, they have been followed, almost universally, by consequences, greatly to be regretted. And if to the rule in Rockwell v. Bradley, we are now to superadd that, for which the plaintiffs contend j the effect of the determination must be, that one, at least, of the undisputed rules, in the law o' mortgages, will necessarily be abolished. If any one of those rules has hitherto been clear, beyond cont roversy : it is, that the profits of the estate, while the mortgagor is left in possession, are, to all intents, his property ; and that be cannot, in any way, be made answerable for them, to the mortgagee. But if the mortgagee, as a matter of course, can recover possession, by ejectment, without any demand, or notice, and against all presumption of a licence, arising out of the transaction ; it must follow, that by a subsequent action, lor the mesne profits, he may recover the whole of them, from the delivery of the mortgage deed, to the time of his recovering possession. For a right to recover mesne profits, from the time of th» ouster, is necessarily incident to a recovery in ejectment j and the record, in the ejectment, is conclusive evidence of that right. And, as the mortgagor in possession, without an express licence, must, upon the present suppostion, be regarded as a trespasser, from the time when the mortgagee’s title accrued ; the liability of the former, for the profits, from that time, must follow, of course. Nor is this all. For the mortgagee, after obtaining possession, even without suit, may maintain trespass against the mortgagor, as for a tor-tious entry; and by laying the trespass, with a continuando, from the delivery of the deed, to the time of his obtaining possession, may, in this way also, recover the whole intervening profits. These results are plainly inevitable, unless we are to avoid them, by abrogating fundamental principles in the law of trespass. What other consequences, less immediate, but perhaps equally to be deprecated, may ensue, I do not now enquire. Those I have mentioned are perfectly obvious : and I cannot consent to be instrumental in producing them. I have no doubt, that the direction to the jury was wrong.

Chapman, J. gave no opinion, having been concerned as counsel in the cause.

New trial not to be granted.


author: Swiít, Cb. J. Ooui.d» J.

text:
    Palmer against Palmer.
    Torenderar execution valid, itmusi pursue, and be warranted by, the judgment. If, therefore anexecutior in favour of a party in hi; private capacity, be issued on a judgment in favour of that party as adminis-tratar, and be levied on the land of the debtor, it will create no title.
    THIS was an action of ejectment for two pieces of land in Greenwich.

    The cause was tried at Fairfield, December term, 1817, before Edmond, Smith and Gould, Js.
    The plaintiff claimed title to the demanded premises, by a conveyance from Simeon H. Minor, Esq. whose title, if he had any, was acquired by the levy of an execution. It was admitted, that at the time of the levy, the title was in Oliver Palmer, the execution debtor. To prove Minor's title, the plaintiff offered in evidence, 1. a writ and declaration in fa-vour of “ Simeon H. Minor, administrator of the goods and estate of Ferris Palmer, late of Stamford, deceased,” against Oliver Palmer. 2. A judgment of the county court for Fairfield county, held on the tiiird Tuesday of April, 1814, in these words: Simeon II. Minor of Stamford, in said county, administrator of the estate of Ferris Palmer, late of said Stamford, deceased, plaintiff, against Oliver Palmer of said Stamford, defendant; in a plea of the case, demanding 75 dollars, as per writ on file, dated April 6th, 1814 : the parties were here called j the plaintiff appeared, and the defendant made default of appearance: whereupon it is considered by this court, that the plaintiff shall recover of the defendant, 83 dollars, 88 cents, damages, and his cost, taxed at 6 dollars, 22 cents, and that execution be granted, &c.” S. An execution In these words : “ To the sheriff, &c. Whereas Simeon H. Minor, of said Stamford, recovered judgment against Oliver Palmer, of said Stamford, before the county court holden at Fairfield, within and for the county of Fairfield, on the third Tuesday of April, 1814, for the sum of 83 dollars, 88 cents, damages, and for the sum of 6 dollars, 22 cents, costs of suit, as appears of record, whereof execution remains to be done : These are, therefore, by authority of the state of Connecticut, to command you, that of the goods, chattels or lands of the said debtor, within your precincts, you cause to be levied, and the same being disposed of, or appraised as the law directs, paid and satisfied unto the said creditor, the aforesaid sums being 90 dollars and 10 cents in the whole, with 17 cents more for this writ, and thereof to satisfy yourself for your own fees. And for want of such goods, chattels or lands of the said debtor, to be by him shewn unto you, or found within your precincts, to the acceptance of the said creditor, for the satisfying of the aforesaid sums, you are hereby commanded to take the body of the said debtor, and him commit unto the keeper of the gaol in Fairfield, in the county of Fairfield aforesaid, within the said prison, who is hereby commanded to receive the said debtor, and him safely keep, until he pay unto the said creditor, the full sums above-mentioned, and be by him released, and also to satisfy your fees. Hereof fail not,” &c. 4. The officer’s return on the execution, stating, in the usual form, his levy on the debtor’s right in the land in question, the appointment of appraisers, their ap-praiscmcnt under oath, and concluding thus : “ 1 do, therefore, by virtue of this execution, on this 26th day of October, 1814, set off to the creditor named herein, the equal, undivided 7166 seventy-two thousandth parts of said land, as a right of the said debtor therein, to satisfy 58 dollars, 71 cents of this execution, and cost of levying the same ; it being all the right, title and interest, the said debtor has in and to said land.”

      Hartford,

    June, 1818.

      To the admission of this evidence, the defendant objected, on the ground, that the judgment did not support or warrant the execution, as it did not appear to be the same judgment, on which the execution was issued. The court excluded the evidence ; and thereupon the issue was found in the defendant’s favour. The plaintiff moved for a new trial; which motion was reserved in the usual manner,

      Sherman, in support of the motion,
    contended, that this execution vested the same title in the creditor, which It would have done, if the word “ administrator” had been in-* greeted in it; and that, consequently, the. omission was immaterial. Crawford v. Whitall, Doug. 4, 5. n. Bonqfous v. Walker, 2 Term Rep, 126.

      Daggett and JV*. Smith, contra,
    insisted, that the execution must pursue the judgment; otherwise, it lias nothing to support it. A judgment in favour of Jl, in bis representative character, will no more support an execution in favour óf J, in his private capacity, than a judgment in favour of B. will support an execution in favour of C. Bac. Mr. tit. Execution, (F.) Norton v. Harvey, 1 Vent. 259. Wate v. Briggs, 1 Li. Raym. 35.
   Swiít, Cb. J.

The question in this case is, whether an execution levied on land, which is in favour of the plaintiff, in his private capacity, and the judgment was in his favour as administrator, will create a title to the land. It is an unquestionable rule, that the execution must pursue, and be warranted by, the judgment, to render it valid. Here is no judgment in favour of the plaintiff in his private character j but only as administrator. The execution, then, does not pursue the judgment ; and there is no judgment: to warrant it. JiHÍecd, ill ere does not appear to be any judgment on which the execution issued. It is, therefore, a nullity ; and the court did right to reject it.

Ooui.d» J.

None of the authorities, referred to in support of the motion, apply to the case before us. There was no question of variance, in any of them : whereas, in the present case* that is the real and only questions That an administrator may maintain debt, or a sc ire facias, in his individual capacity* upon a judgment recovered by him in his representative character, there appears now to be no doubt, notwithstanding former opinions to the contrary. Crawford v. Whittal, Doug. 4. n. Bonafous v. Walker, 2 Term Rep. 126. For the judgment, it is agreed, converts the original demand into a debt, due to himself, in his own rights Hut this admission is nothing to the purpose of the plaintiff’s argument: for it is equally certain* that in whatever mode the original judgment is to be enforced, it must be set out or counted upon* as it iss Hence, if the administrator sues upon the first judgmenthe must unquestionably aver, that he recovered it as administrator. And for the same reason, if he takes execution upon it without a second suit ;• the execution must show the same fact: otherwise, the judgment will not support the second action, in the one case, or the execution in the other— as there will necessarily be, in either case, a fatal variance'. There is also no doubt, that upon a judgment recovered against an administrator, as such* he is liable lo a sci.fa. in his individual capacity. But will it be, therefore, contended, that, without any intervening suit, execution upon such a judgment, might issue* in usual form, against him, in that capacity ? Or, that execution could issue against him, in any form, without showing, upon the face of it, the capacity, in which he was subjected by the judgment ? This cannot be. The execution must pursue the judgment, whether it he against, or for, him. Upon the same principle, upon which the judgment must conform to the declaration, the execution must conform to the judgment. For, as the declaration is the foundation of the judgment; so is the judgment the foundation of the execution. But, in the present instance, there is, between the two latter, a most material variance. For if any thing in the judgment, or execution, can he material * surely, the representative character, in which ¿Minor sued ami recovered, must be so : since, upon the face of the record of his recovery, his right of action was only in tha; character. It cannot be denied, then, that this execution,, which is sued out, in his own right, and imports to have issued upon a judgment, recovered by him, in the same right varies, essentially, from the judgment. The judgment produced, as it appears, and must appear, to the court, is not that, upon which the execution issued. And as no other judgment is shown, to warrant the issuing of the execution ; the only conclusion is, that none such exists. How can the court know, that this execution actually issued, as the plaintiff claims, that it did, upon this judgment ? The legal inference is directly against such a supposition. And this inference cannot be ousted by evidence aliunde. If this is, in truth, the same judgment, upon which the execution was granted •, we still cannot take the fact to be so, upon averment. It must appear, prima facie, from inspection : for an execution follows, or emanates, from a judgment, as the latter does from the preceding part of the record, or, as a conclusion from its premises. According to this view of the subject, it is very manifest, that the execution, under which the plaintiff claims title, is unsupported by any judgment. The difference between the two capacities, in which Minor appears, in the judgment, and in the execution, is virtually a difference of parties ; and must produce the same legal effect as if the execution had issued in the name of a different person. I will add, merely, that if there has been a mistake, in issuing the execution, (as, in point of fact, is doubtless the case;) there can be no difficulty in correcting it, by a proceeding, adapted⅜0 that end. But I am very clear, that the legal title is not, now, in the plaintiff.

The other Judges were of the same opinion, except Chapman, J. w ho gave no opinion, having been absent w hen the-case was argued. #

New trial not to be granted .


author: Swift, Cb, J, Hosmes, J. Gould, J.

text:
    Beers and another against Hawley and others.

      Hartford,

    June, 1818.
    THIS was a bill in chancery fora foreclosure of the equity of redemption in mortgaged premises. All persons interested were made parties, and were cited in.

      Isaac Hawley, one of the defendants,
    on the 3d of February 1812 mortgaged, the premises to Truman Minor, for 3,143 dollars. On the same day, he mortgaged the same land to William Wright for 5,500 dollars. Both deeds were entered upon the town-records, on the day of their date. On the 22d of June 1814, Minor, being in possession, mortgaged the premises to the plaintiffs, by a deed containing covenants of seisin and warranty, to secure the sum of 1,519 dollars 07 cents. On the 6th of May 1815, Minor again mortgaged the premises to Elijah Terrill and Isaac Babbit, for 828 dollars, S3 cents. All these mortgage debts remained unpaid.
    On the hearing, the plaintiffs claimed, that Hawley’s deed to Minor was executed and delivered prior to his deed to Wright. Wright claimed, that both deeds were executed and delivered at the same time, and consequently, that he and Minor were tenants in common $ and to prove this fact, he offered the confessions of Minor, made after Hawley’s deed to him, and before his deed to the plaintiffs ; particularly, a writing signed by Minor, and delivered to Wright’s attorney, in these words : “ Whereas I received a mortgage deed of Isaac Hawley of certain lands and buildings therein described, dated the 3d day of February 1812, and William Wright holds a mortgage deed, given and executed by said Hawley, of the same lands and buildings, dated the same time and place as mentioned in my said deed ,* and whereas my said deed was, by mistake or misdirection of the hearer of the same to the recorder, entered for record five minutes before the said Wright’s deed aforesaid : Therefore, this may certify, that there is to be no priority between the said two deeds, but they are to be considered as both standing on equal grounds, and of even dates, and no priority of date or claim in any respect; as witness my hand. Brookfield, June 30th, 1812. [Signed.] Truman Minor.” To the admission of this writing, for the purpose stated, the plaintiffs objected ; and the court excluded it, and decided, that the deed to Minor was prior to the deed to Bright.

      j?. mortgaged the same land to B. j and to C., by separate deeds, executed and delivered oa the same day. Both deeds were recorded on that day ; but jB.’s deed was entered for record a short time before C.’s. B. after-wards conveyed his title to D. On a bdl for foreclosure by D., it was held, that a writing signed by B. while in possession under vi.’s deed to him, and before his conveyance to J)., ac-knowledg-ing that' there was to be no priority with respect to the two deeds, and that it was through mistake or misdirection of the bearer, that It’s deed was entered for record first, was admissible evidence, to shew that ti*e deeds took effect simultaneously.
    Such writing is not an agreement affecting' the title of land, which the law requires to be •ecorded.
    Though it is generally true, that of two or more deeds, that which is first recorded, is entitled to priority; yet this rule must be so qualified, as to allow every grantee a reasonable rime to get his deed recorded ; and all deeds recorded within such rea «.cable time, wdl take effect according to the time of execution.

      The defendants claimed, on several grounds, which it has become unnecessary to state, that the plaintiffs were not entitled to a decree in their favour. The exceptions thus taken were overruled by the court; and the decree sought by the bill was passed. The defendants moved for a new tria!, on all the grounds oil which the decision of the court was against them. The questions arising on such motion, were reserved for the consideration and advice of the nine Judges.
    JV*. Smith and T. 8. Williams, in support of the motion,
    contended, among other points, that the confessions of Minor, against his interest, made while he was owner of the land, and in possession, were admissible, especially as against tiie plaintiffs, who claim under Minor. They cited Davies v. Fierce ⅜* al., 2 Term Rep. 53. Walker v. Broadstock, \ Esp~ 458. Waring v, Warren, 1 Johns. Rep. 342, 3. Jackson d. Griswold ⅜* al. v. Bard, 4 Johns. Rep. 230. Jackson d. McDonald, v, M(Call, 10 Johns, Rep. 377.

      Daggett and Sherman, contra,
    contended, that the writing ⅛ question is not a confession. It is an agreement between Wright and Minor, giving Wright an equality, and quit-, claiming any priority in himself. This will always be good between Minor and Wright, but cannot affect third persons. Further, as the writing gave Wright an interest in the land, he ought to have recorded it. He has suppressed it; and he must, of course, be postponed in chancery. The deed to Minor appears upon the town records, to have been first recorded. This writing was made to correct the record; and to have any effect upon persons not parties to it, it must itself be placed upon record.
   Swift, Cb, J,

In this case, the plaintiffs, as grantees of Minor, claimed a priority of title, on the ground, that hi; deed was first recorded. Wright, one of the defendants,, claimed an equality of title, and that he was tenant in common with Minor, on the ground, that the execution of the deeds was simultaneous, and that his deed was recorded in a reasonable and proper time : and, to prove the fact, offered the written declaration of Minor, when he was the owner of the land, and in possession ; which w as rejected by the court.

It is generally true, that the deed which is first recorded shall prevail; but to this there are exceptions. Where the second grantee, having notice of the existence of a prior deed procures his deed to be first recorded, it shall not prevail against; such prior deed. Where the first grantee procures his deed to be recorded within a reasonable and proper time after its execution, it will be valid against a subsequent deed, though first recorded j for every purchaser is entitled to a reasonable time to procure his deed to be recorded. Both these deeds bear date, and were recorded, on the same day ; but the deed to Minor was received for record, about five minutes before the deed to Wright. As both deeds were recorded in a reasonable time, it becomes material to ascertain the time of their execution : for if their execution was simultaneous, Minor and Wright, by operation of law, became tenants ip common.

The time of the execution and delivery of a deed is always a matter in pais, to be proved like any other fact; and it is competent for the party to shew a delivery on a day different from the date. His confession, admission, or dec. larat.ion, whether by parol or in writing, (while interested and in possession,) against his interest, is proper evidence, notwithstanding a subsequent conveyance; subject, however, to be explained, like any other testimony. The written declaration of Minor, while owner of the land, conduced to prove, that the deeds were executed at the same time, and that he was entitled to po priority. It was, then, clearly admissible evidence.

it has been contended, that this was an agreement, affecting the title, creating a new right, and in effect a conveyance of lands, and ought to have been recorded so as to give notice, and prevent subsequent purchasers from being prejudiced. But this writing created no new right; it was merely evidence of a fact, by which the priority of the deeds was to be determined, and was not by law required to he recorded. And though it may be very desirable, that all titles to lands should be evidenced by public records, yet it cannot he done in all cases : lor the time when a deed was executed. and whether it was recorded in a reasonable time, cannot appear from the record.

As a new trial must be granted for this reason, it is unnecessary to decide the other questions made in the case ; for this may assume a very different, shape, if there should b® a further trial of the cause.

Hosmes, J.

The deeds of Hawley to Minor and to Wright were delivered at the same time. This fact is established, by the declaration of Minor, made while he owned the mortgaged premises, and before the execution of his deed to the plaintiffs. The testimony offered, fully proves this point; and, in my judgment, the court erred in rejecting it. The writing signed by Minor, is not merely an agreement that there should be no priority of his title to that of Wright, but an admission that there never was any priority. It declares, that the deeds were dated at the same time and place.

The declaration of Minor, made while in the possession of the premises, was admissible, not only against himself, but against the plaintiffs, who claim under him. Waring v. Warren, 1 Johns. Rep. 343. Walker v. Broadstock, 1 Esp. 458. Davies v. Pierce & al. 2 Term. Rep. 53. Jackson d. Griswold & al. v. Bard, 4 Johns. Rep. 230. Jackson d. McDonald v. M‘Call, 10 Johns. Rep. 377.

The deed to Minor was registered on the town records, before the deed to Wright, but on the same day. This, it is said, is, to all subsequent purchasers, evidence of priority; and to rebut the presumption that Wright should have caused the written declaration of Minor to have been recorded. The latter suggestion I will just answer. It will not be pretended, that the writing under the hand of Minor, was a deed. But the duty of the recording officer extends to the registration of deeds only. The town clerk was tinder bo more obligation to record the written declaration of Minor, than to register his letters, promissory notes, or parol declarations ; and had he done it, it would not have been evidence of constructive notice to any person. The writing was merely evidence of a fact admitted, resting on no higher ground than a mere verbal declaration.

As to the supposed priority, apparent of record, in my judgment, it has not the slightest foundation. The tow* records are evidence of the facts recorded. Now, wliat were the facts ? That mortgage deeds of the same land were executed on the same day, and at the same place, to Minor and to Wright,* and that the deed to the former was first recorded. It has been contended, (and on this depends the controversy between the parties) that priority of record infers priority of grant. On what principle is this suggestion to be supported ? The record on this point is silent. The deeds are dated on the same day, and on the same day recorded. At most, the matter insisted upon is an inference. No one will venture to assert, that from the premises, that is, from two deeds bearing the same date, and one of them being first recorded, it can be deduced as a fact, that one deed was executed prior to the other. If, then, there be any inference, it is a presumption of law. Now, on what basis is this supposed legal presumption to rest ? It is a presumption without any premises ; it is a presumption, where the probability of its being in opposition to the truth, is precisely equal; it is a presumption, which opens a wide inlet to fraud. A person, on the first day of a given month, at New-Lond&n, may execute a deed of land lying in Hartford, and afterwards, on the same day, may give a deed of the same land, in the latter town. It would be a construction, unjust, inconvenient, and 3ueh as no supposable principle would authorize, to hold the last deed valid, because the grantee procured it to be firs? recorded. It would be equally opposed to the determinations of our courts, and the general understanding of the people. It is correctly said, in 1 Swiff s Syst. 308. “ that every purchaser of land shall have a reasonable time to procure his deed to be recorded. But, the length of time that is to be considered reasonable, has never been ascertained, and perhaps cannot be, and must be left according to the special circumstances of each case. It has been adjudged, where two deeds were taken on the same day, and the last deed was recorded the next day in the forenoon, and the other in the afternoon, that the first deed was recorded in reasonable time, and should hold the land. The propriety of this decision cannot be questioned,” I am of the same opinion. Sufficient time must be allowed a person to procure his deed to be recorded, before his title can be annulled, by the extraordinary vigilance and exertion of a subsequent grantee. This principle gives that reasonable evidence of title which t-hc statute intended, and prevents the perversion oí’ a prior record, id Unwarrantable purposes.

He who is notified by the town records, that two deeds of the same property were executed and recorded on the same day, is informed, that he must look out of the record for priority of title. That is the Case before the court; and the testimony offered to evince it, should have been received.

As a new trial must be granted on this ground, and there is not a perfect coincidence of opinion on the other questions in the case, I shall omit further observation.

Gould, J.

I acquiesce, though with much hesitation, in the opinion that the writing, offered in evidence, by the defendant, Wright, ought to have been admitted — not, however, upon the ground, that priority, in the recording of deeds, is no evidence of priority of title : for, I believe it to be a sound position, that the deed first recorded, carries, prima facie, the prior, or legal title. If not, of what importance is the time of recording a deed, in any case ? The records or registries of conveyances, under the statute, are designed, as a medium of notice to all persons, as to the ownership of real property — by furnishing proof, accessible to all, in whom the title to that species of property, is. But how are these records to answer this purpose ? By showing, at what time, each deed was lodged with the clerk, and recorded, as well as what are its contents ; but they do not prove the time of its actual delivery ; nor can it be learnt from them, (not only for this reason, but for others also,) whether the party, claiming under a given deed, has been diligent, or negligent, in procuring it to be recorded. The presumptive evidence, which they afford, is, therefore, I think, always in favour of the deed, first recorded. For the only presumption they raise, as to priority of title, is that, which results from priority, in recording it. But this presumption may, sometimes be rebutted, by proof of extrinsic facts. And as the alleged fact of the simultaneous delivery of the two deeds in question, was, in its nature, legally provable, as being relevant upon the point of priority ; I cannot, I confess, assign a reason, altogether satisfactory to myself, why the written certificate, offered in evidence, by Wright, was not, in strictness, admissible, upon that point. I find a difficulty, in excepting it from the rule, under which the declarations of a former proprietor, aguinst himself, ¡save always been admitted, against, those, who claim under him : 1 hough .from the very suspicious character of the evidence offered, I should be much better satisfied, if some dear ground could be shown for excluding it.

The other Judges, who were present, were of Use same opinion. Edmo.v», J. dissented at first, but on further reflection, acquiesced in the decision. Cn.vrM.vjf, J. was absent.

New trial to be granted.

       1 Stat. Conn, tit, 162. o. 1. and 2-