Wires & Peck v. Charles L. Nelson, R. Batchelder, A. Waters and L. J. Gibson, 26 Vt. 13

The opinion of the court was delivered by Redfield, Ch. J. This is an action of ejectment in favor of a subsequent mortgagee, against the mortgagor and his tenants of a portion of the premises in severalty. The mortgagor is regarded in this State, after the law day, as a quasi tenant to his mortgagee, and we are not aware, that it has ever been doubted, that if he executes two, or more successive mortgages, to different persons, he is as much estopped to deny the title of the subordinate mortgagees, as of the first.

His deed stops him from denying the title of either, or setting up an outstanding title in a stranger, or of defending himself by means of that title, until he has first bona fide surrendered the possession. Reed, Admr. v. Shepley, 6 Vt. 602. Greeno v. Munson, 9 Vt. 37. This question has long been considered as settled in this State. There is, in fact, no such title in the first mortgagee, as to defeat the subsequent one’s right of recovery in ejectment, against the mortgagor, and his tenants, and if there was, the mortgagor is estopped from setting it up against his own mortgagee.

It is the duty of the mortgagor to surrender to either, on notice, and if he do not, he thereby becomes a wrong doer, and liable to pay rents and profits, to some one of the mortgagees upon general principles. II. A question is made here, whether the rents and profits can be recovered, by a subordinate mortgagee. Upon principle it would seem, that it should be so. His title is good against the mortgagor, his assignee, or tenants. And aside from the question of the prior mortgages, it has been held, that he may recover mesne profits of the assignee of the mortgagor. Atkinson v.

Burt et al., 1 Aikens, 329; also against his tenants. Babcock v. Kennedy, 1 Vt. 457. This must be the same, as a recovery against the mortgagor himself. And accordingly it has been regarded as settled, since the case in Aikens’ R., that the mortgagee may recover rents and profits, by way of damages in ejectment, either against the mortgagor, or any one in possession, claiming title under him.

And we think upon general principles, the right to recover the premises and hold the use, which seems to be accorded to the subordinate mortgagee, involves virtually the right to recover rents and profits, from the time notice is given to the mortgagor. It would be very unreasonable if it were not so, since confessedly the subordinate mortgagee is ordinarily, the only one in interest in the question. The prior mortgagees, not moving, are presumed to be fully secured, and to have no interest in securing the rents.

The last mortgagee, whether he intend to redeem or not, is then the only one in interest in the rents. It is admitted on all hands, that the mortgagor has no right to withold them from the mortgagees. If no suit is brought, or notice given by the prior mortgagees to the mortgagor to pay rents to them, as in this case, it is certain they cannot recover them, and if a recovery is denied to the plaintiff here, the mortgagor retains them himself, in spite of the only one interested to recover them.

And if the first mortgagee takes them at any time to himself, that is the same thing to the last mortgagee, as if he had them himself, since they are thus made to go to reduce the burden upon the land, and virtually to enure to the ultimate benefit of all the' mortgagees. But if the prior mortgagee, make no such claim, then, if the last mortgagee brings suit, and is entitled to recover, in ejectment, he must by the statute recover rents and profits, unless in some way they are secured to another, or are held as in Collins v. Gibson, 5 Vt. 243. That was the only ground upon which the recovery was denied them.

But in that case the second suit was brought after the first mortgagee had recovered a judgment, and .within one month of the time of the expiration of the time of redemption, and the court very properly held, that the right to mesne profits was secured to the first mortgagee, from the time of bringing his suit, which we are not inclined to question. And pérhaps even notice to the mortgagor to pay rents would have the same effect. But when no notice is given, as in the present case, we think the subsequent mortgagee may recover rents and profits, from the service of his writ, or notice.

But whether if the first mortgagee waives his claim for rents and profits, the subsequent mortgagee, having given notice for the same time, may not recover them, it is not necessary to decide. After the judgment, and while the time of redemption was running, clearly, the first mortgagee might have enforced his right to rents and profits, which was really the only question decided by the court, in that case. III.

But it is claimed he cannot in a case where the tenants of the mortgagor hold in severalty, recover a joint judgment against them and the mortgagor, in possession of still another portion for the rents and profits of the whole. This may not be strictly just. But since the statute provides in express terms for tenants who hold in severalty to separate in their defence, by a disclaimer, and thus compel the plaintiff to take separate judgments against them, it has been held, that when .they omit to sever in this mode, they must stand or fall together. Judgment affirmed.