McDEVITT v. SULLIVAN, 8 Cal. 592

Burnett, J., delivered the opinion of the Court—Field, J., concurring. 1. The premises being mortgaged at the date of the lease from Davis to Sullivan, in December, 1854, Sullivan took the lease, subject to the mortgage. When the mortgage was foreclosed, and the premises sold to Abel Guy, the mortgaged estate of Davis and wife passed to Guy. From the time that the estate vested in Guy, he acquired the right to demand of Sullivan, either the possession of the estate purchased under the mortgage-sale, or a proportionate part of the rent.

In a suit by Mc-Devitt against Sullivan, the latter had the right to show that a part of the interest of Davis had passed, and that his estate thus far had ceased. So far as McDevitt claimed as the successor of Davis, he was only entitled to the rents that Davis would have claimed at the time of the purchase and assignment by Sullivan. Previous to that purchase, the interest mortgaged by Davis and wife had passed to Guy, leaving in Davis only that portion not covered by the mortgage. Although, as a general rule, a tenant cannot dispute his landlord’s title, he may show that it has terminated.

Chitty on Contracts, p. 296-7. 2. But it is insisted, by the learned counsel for the plaintiff, that Sullivan entered into a lease of the premises with McDevitt and paid him rent; and that Sullivan is, therefore, estopped from denying his landlord’s title. This ground does not seem to be tenable under the peculiar circumstances of this case. Sullivan did not obtain possession under McDevitt, and he is not estopped from showing that the attornment to McDevitt was made under a mistake of fact.

The lease made by Sullivan with McDevitt, and the payment of rent, constitute only prima fade evidence of title in McDevitt. The proof being only prima facie, was fully overcome by the facts established in evidence. There can be no doubt of the fact that Sullivan purchased the premises for the benefit of McDevitt, and the assignment of the certificate of the sheriff, was simply to carry out. the understanding between them. It was, therefore, a mistake on the part of Sullivan in agreeing to pay to McDevitt the entire rent, including the portion that rightfully belonged to Abel Guy.

Chitty on Contracts, 296-8; 15 E. C. L., 234; Taun., 201; 11 Ver., 323 ; 1 Bing., 390. So far, then, as to the individual interest covered by the mortgage, Sullivan had the right to show that he owed the rent to another, and not to McDevitt. 3. But as to that portion of the interest not covered by the mortgage, the case presents a very different question. It is true, that under the authorities before cited, the execution of the assignment, and the payment of the rent, would not estop Sullivan from disputing the title of McDevitt. But how far will this right permit Sullivan to go ?

Under this privilege, can he show, contrary to his lease to Davis, that Davis never had any title ? And if he could not be permitted to show this, as against Davis, (had Davis, instead of McDevitt, brought this suit before the partition,) could he be permitted to show it as against McDevitt, the regular successor in interest of Davis ? McDevitt claims the rent, not only in virtue of the lease, but in virtue of the purchase. He claims upon two distinct grounds.

By taking the lease from Davis, and entering into possession under him, Sullivan is not permitted to deny the original title of Davis, unless he had set up and shown fraud in obtaining the lease, or that the premises had been decided, by a competent Court, to belong to another, in a suit in which his landlord had been made a party before his interest passed to McDevitt, or that McDevitt, after his interest accrued, had been a party to such suit.

The proceedings in the partition-suit did not affect McDevitt, as he was no party to them, and he had succeeded to the interest of Davis in the lease before Davis was made a party. It is true, the right to redeem remained in Davis at the date of the judgment in the partition-suit. But if any redemption was in fact made, the party claiming the benefit of the redemption should have proven that fact. Before the time for redemption expired, the purchaser was entitled to collect the rents. Reynolds v. Lathrop, January Term, 1857. And after the time expired, he would have the same right.

The certificate of the sheriff did not convey the legal title of Davis to McDevitt, but it-was equivalent to an assignment of the lease. The certificate, under the provisions of our statute, was an executory agreement to convey the title to the land after the expiration of the time limited for redemption, and in default of such redemption, while it was a present assignment of the lease itself. As to the proceedings in the suit of Albert Dórente against Sullivan, for the rent, they cannot affect McDevitt, because he was not made a party, and because the judgment was by default, and not upon the merits.

Because Sullivan permitted Albert Dórente to take' judgment against him by default, it was no reason that such a judgment should bind any one but the parties to it. But even conceding such judgment had been upon the merits, it could not bind McDevitt, who was no party to the suit. The moment Sullivan discovered that there were adverse claims to the rents, he should have filed his bill of interpleader, making all adverse claimants parties, and offering to pay the rents into Court, to abide the ultimate decision as to the party entitled to them.

When a party rents property of another, and he learns afterwards that the title of his landlord is disputed, he may at once proceed in the proper mode to, settle the question. If he fail to do this, he cannot dispute the title, except in the cases stated, where the title of his landlord has ceased, or when the lease was obtained by fraud.

As Sullivan did not obtain possession under McDevitt, he might well show any fact that would prove that the right of Davis in the lease, in whole or in part, did not pass to McDevitt; but he could not dispute the original title of Davis, or his original right to make the lease in his own name, except in the cases stated. Conceding the right of Davis as against Sullivan, and conceding that it passed tó McDevitt, the proceedings in the last two suits mentioned can have no effect upon McDevitt’s rights, and they stand as if those suits had never been brought.

There was, then, before the Court, no competent testimony to show that Davis had no title as against the tenant at the time of the purchase and assignment byiSullivan, except as to that portion of Davis’ interest covered by the mortgage. It may he unfortunate for Sullivan to be forced to pay the rents twice, but we can only decide upon the facts parties bring up before us. Our conclusion is, that McDevitt is entitled to judgment for that portion of the rents that did not pass to Abel Guy; and that Sullivan is entitled to a credit for the over-payments made to McDevitt before the suit was brought.

Guy being entitled to a certain portion of the rent from the date of his purchase, Mc-Devitt had no right to receive the entire rent, including the portion due to Guy. And for that excess in the payment, Sullivan has a right to a credit. 10 B. & C., 106. The judgment of the Court below is reversed, the cause remanded, and that Court will render judgment for the plaintiff, in accordance with this opinion.