The Middletown Savings Bank against Bates, 11 Conn. 519

Bissell, J. This motion has been supported on two grounds. The first is, that the judge on the circuit admitted Henry Carrington and Augustus Cook, Esquires, to testify in the cause. It is claimed, that they were incompetent witnesses. From their examination, it appears, that they were trustees of the Savings Bank; but that they were neither stock-holders nor depositors. Nor had they any interest in the event of the suit, unless the fact of their being trustees created such an interest. Now, it is impossible to conceive how that circumstance should create any interest whatever.

The charter, under which they derive their appointment, requires, that they shall manage this fund, for the benefit of others, and expressly forbids that they shall receive any compensation for their services. They, then, are trustees merely. They are not parties to the record : nor have they any imaginable interest in the fund, which is to be affected by the termination of this action. And it is, surely, too late, now to agitate the question, whether a mere trustee, without an interest, is a competent witness. The point has been too often decided. Comstock v. Hadlyme, 8 Conn. Rep. 254, Sears v.

Dillingham, 12 Mass. Rep. 360. The other question in the case arises out of the charge to the jury. The action was brought by mortgagees against the mortgagor. And in regard to that portion of the mortgaged premises, now in controversy, it was admitted, that they were in possession of tenants of the defendant, in virtue of leases given subsequently to the mortgage ; and that he was in the reception of the rents and profits. Upon this state of facts, the jury were instructed, that they might find a disseisin by the defendant, and of course, a verdict in favour of the plaintiffs.

The record, then, presents this precise question : Whether an ejectment lies, in favour of a mortgagee, against a mortgagor, who is in possession of the mortgaged premises, by his tenant, taking to himself the rents and profits, and by a lease made subsequent to the mortgage ? And the question would not seem to be difficult of decision, if we look, for a moment, at the liability of the mortgagor, in connection with the corresponding rights of the mortgagee.

Now, in regard to the mortgagor, it is well settled, that he is liable to be ejected from the premises before the expiration of the law day, and without any previous notice to quit. Rockwell v. Bradley, 2 Conn. Rep. 1. Wakeman v. Banks, 2 Conn. Rep. 445. Of course, the mortgagee may treat the mortgagor as a wrong-doer, and maintain an action of ejectment against him, immediately upon the execution and delivery of the mortgage deed. And what is it incumbent on him to prove, in order to sustain the action ? Title in himself, and an ouster by the defendant.

Here, the title being admitted, the only question was, whether the defendant had, in contemplation of law, been guilty of an ouster ? Had he remained in possession, or had he entered and taken possession in his own person, and retained it against the mortgagee, there would have been no doubt. And does it vary the case, that he has entered by his tenant, from whom he receives the rents and profits ? The answer to this enquiry would seem to be involved in the very terms of the question.

And it is only necessary to apply to the case the very familiar and well settled principle, that the possession of the tenant is the possession of the landlord. Emerson v. Goodwin, 8 Conn. Rep. 422. Chirac & al. v. Reinicker, 11 Wheat. 280. The application of this principle at once obviates the objection so much insisted on at the bar, and in support of which, a number of authorities have been cited, that the action can only be maintained against the person in possession.

Sup- pose this tenancy had continued for more than fifteen years, the defendant all the while denying the title of the plaintiffs; whose would have been the disseisin ? And upon whom would the title, acquired by an adverse possession of more than fifteen years, have devolved ? Upon the landlord, or the tenant? Most clearly upon the former. Upon what ground, then, can he now claim, that he has not committed an ouster ? Does not the case stand on the same ground as if he had commanded a third person to enter, or had put him in possession with force and strong hand? And could there be any doubt in such a case?

It is laid down, that where one person counsels or commands another to disseise a third person, although he is called a counsellor, commander, or a coadjutor, yet he is a disseisor, in respect to the person disseised ; and that he, as well as the person to whose use the disseisin is made, is liable to the assize of the disseisee. 2 Bac. Abr. tit. Disseisin. A. Co. Litt. 180. Rol. Abr. 663. It is not, then, surely, for this defendant to complain, that his rights are invaded, or that any injustice is done to him, by making him a party to this action. The defence has not, indeed, been urged on that ground.

But the rights of the tenant have been interposed. It is said, he is liable to be turned out of possession upon the execution, although he was no party to the judgment, and had no opportunity of defending his title. This is true ; and it may be a hardship. But it is one which grows out of the nature of the action. The same difficulty would have existed, had he entered after action brought, and, without any notice of its pendency.

And if, in either case, he is liable to be turned out before the expiration of his lease, and without notice, it is in consequence of his own folly, in entering under a man, who could give him no title, except one subject to this infirmity. It should, however, be remarked, that no rights of his are concluded, by this judgment. He may, in an action hereafter brought, to recover back the possession, show that he has a title paramount to that of the mortgagees. We are satisfied, that the ruling upon the circuit was right, and therefore, deny the motion. In this opinion the other Judges concurred.

New trial not to be granted