Averill and others against Taylor, Voorhees and another, 8 N.Y. 44

Morse, J. The important point of inquiry in this case is, whether a. tenant for years has a right to redeem the mortgage of his lessor, made before the lease under which the tenant claims. I understand the law to be as well settled, as the reason and justice of the rule is clear, that any one who holds the actual relation of surety for the mortgage debt, charged upon land in which he has an interest, although his liability as such surety extends no farther than to lose his interest in the land, has a right to redeem, for the protection of such interest.

And I suppose it to be equally well' settled, that his right as surety in such a case, and upon his redeeming, is, to be subrogated to the rights and to occupy the position of the creditor from whom he redeems. These propositions, I do not understand to be controverted, but it is argued by the defendant’s counsel, that the tenant for years has no interest in the land, but an interest in the term only.

It is said in the defendant’s points, and Chancellor Kent is quoted as authority for saying, that a tenant for years has no interest in, or legal or equitable lien upon the land. “ He has only a contract for the possession and profits of the land with the recompense of rent.” At the common law, a tenant for years, before entry, was held to have only an interest in the term, and only possession of the term■ after, entry and not an interest in the land, “ the possession or seizin of the land remaining still in him who hath the freehold.” (2 Bl Com. 144; Coke Litt. 466.) Besides other reasons peculiar ■ to the feudal system, there was the want of notoriety of livery of. seizin in the creation of these estates, which rendered them objects of disfavor to the common law, as they were sometimes made the instruments of fraud.

They .could be defeated by a common recovery, but that went upon the ground that the recoveror came in under a paramount title, to that of the lessor' under which the tenant for years held his term. The lessor, not having title, or his title failing and giving place to a superior title, the term of course fell with it. Under the common law aided by occasional statutes, estates for years gradually became valuable, were recognized and protected. They take their place under our statutes as estates in land. (1 R.

S. 722, § 1.) They are .not spoken of as terms or as interests in terms, but ranked as estates in land, and called chattels real. When such estates were mere terms, and the tenant for years was deemed not even to have possession or seizin of the land, although occupying it, he had no estate, nor interest in the land, but only in the term. But now estates for years may be sold on execution, as real estate. (2 R. S. 359, § 5, and 367, § 24.) It is true the distinction is preserved between freehold estates, and chattels real. (2 R.

S. 722, § 5.) This was desirable, in order to preserve the law of succession, and not to break in upon .the rights of personal representatives, widows and creditors of deceased persons, and perhaps for other reasons. A rule of proerty so long acted upon could not be suddenly subverted without great wrong, to such as had acted upon the faith of the rule.

Chattels real are created continually under assessment laws in cities and villages, for hundreds, and not unfrequently for thousands of years, and that too, without any charge for annual or other rent, but upon the payment down of a sum certain at the commencement of the term. Such estates may be, and often are of far greater value than a life estate which is a freehold, yet they are only estates for years and mere chattels.

It would be strange at this day, and. after the great changes which have taken place in the law relating to estates for years, if one having an estate for a'thousand years in land, by lease or grant-from the tenant in feé, could not redeem from a prior mortgage, and save his estate, and that upon the ground that at common law, he had no interest in the land, but only in the term. It was said upon the argument, that an estate for years, may be only for a single year, or eVen for less than a year. A term may certainly be for a year only, or for a less time, and still be called a term of years.

To the argument drawn from the possible shortness of the duration of an estate for years,, it may be a sufficient answer, to say,' that a mortgagor who is also a lessor subsequent to his mortgagee, of the mortgaged premises, who fails to protect his lessee by the payment of the mortgage, could not very well object that his lessee should protect himself by redeeming the mortgage. Besides, a court of equity would not be obliged to enforce a redemption that was merely frivolous, and for vexation.

In a case like the present, the mortgagor is bound in equity and good conscience to permit his lessee to do that, which according to his contract, he ought himself to have done. As he has not paid his debt, which was his duty, lor the protection of his tenants, he has no right to object that they should "pay it, and-upon such payment be subrogated to the original rights of the mortgage creditor.

By his lease the mortgagor made his lessee a surety, in so far as the estate for years in the land granted to, and held by his lessee stands pledged for the payment of the mortgage debt;, and having by his solemn contract placed him in this position of su’rety, he ought not to be heard to object to his, or his assignee’s exercise of the rights of a surety. As to the mortgagee, he is to receive his money.

And when paid by the mortgagor he is also to deliver the bond and mortgage to be canceled, and the mortgage being recorded, to execute if tendered to him, such a certificate as will cancel the record of the mortgage. But" if the lessee redeem, the mortgagee is to assign to him the bond and mortgage without covenants. It can make no> difference to the mortgagee which he does if he gets his money. The mortgagor who has leased the mortgaged premises, and who neglects to pay the mortgage debt can not be injured. All he has to do is to perform his duty and pay.

It can make no difference to him to whom he performs this duty, so that when it is performed, he can be protected by a proper discharge from liability. But if the lessee can not redeem, lie maybe very injuriously affected. A sale of the land to the mortgagee, or to a stranger will destroy his estate for years. To protect himself he would be' obliged to keep himself always in readiness to purchase and pay for the land when sold upon foreclosure, and obliged to pay the value of the land discharged of his estate for years.

In i case of a strict foreclosure, not leaving a right to redeem, he would be without any remedy whatever. If it were done by collusion, and for the purpose of cutting off' his estate for years he could not complain. It would not matter to him what remedy the creditor chose to adopt. It will not be claimed, I apprehend, that the lessee would be bound or affected by any form of foreclosure to which he was not a party; and wherefore make him a party to a strict foreclosure if he could not redeem?

If he redeems he is bound fully to satisfy the mortgagee, rvho is entitled to the entire payment of the mortgage debt. (10 Paige, 49.) No harm can possibly happen to any one, in such a case as this, to allow the lessee to redeem, and to be put in the place of the mortgagee. It is plain that harm, which would be an equitable injury, would happen to the plaintiffs, if denied the right of redemption. • The judgment should, be affirmed.

Taggart, J., expressed a doubt whether the plaintiffs holding an interest in only a part of the mortgaged premises, could enforce a redemption of the whole, without bringing before the court, the persons interested in the residue. It was, however, agreed by the whole court that they could, and that no injury could be done to the absent parties by allowing such redemption, as the redeeming parties would merely take the place of the mortgagee.

Johnson, J., was of opinion that costs should not have been given to the plaintiffs, but as their allowanee rested in the discretion of the court below, he was in favor of affirming the judgment. Jewett and Mason, JJ., were for reversing the judgment, so far ás it allowed costs to the plaintiffs, and affirming it in other respects. All the other judges were in favor of an affirmance.- Judgment affirmed.