[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 418
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 419 It is undoubtedly the law that ejectment will lie against a mortgagee who has taken possession without the consent, express or implied, of the mortgagor, but not if the mortgagor consent to, or acquiesce in, the entry of the mortgagee. In the former case ejectment is an adequate remedy, if the mortgagor seek merely to regain possession. But it does not follow that a mortgagor may not, if he choose, treat a mortgagee who has taken possession wrongfully as a mortgagee in possession. The only cases in the books disclosed by a diligent search in which a mortgagor was denied relief in equity on the ground that he had an adequate remedy at law, the mortgagee's possession being wrongful, were cases in which the plaintiff sought simply to regain possession, in *Page 421 other words to maintain a possessory action in equity. (Endel Son v. Walls, 16 Fla. 786; Pfeltz v. Pfeltz, 14 Md. 376.)
An action to redeem will lie against a mortgagee who is not, and has not been, in possession. Is the mortgagor in a worse case, if the mortgagee gets possession wrongfully? Surely the defendants cannot resist the application of rents and income to the payment of the plaintiff's debt on the ground that they had no right to receive such rents. The debt being paid, the mortgagor is entitled to have the apparent lien of the mortgage removed as a cloud upon his title. If it were still unpaid he would be entitled in equity to compel the acceptance of the amount due and the discharge of the mortgage. Tender of the amount due is not even necessary before bringing suit. (Casserly v. Witherbee, 119 N.Y. 522, 528.) "The mortgagor can always come into a court of equity and obtain a decree removing the lien of the mortgage." (Pomeroy's Equity Jurisprudence, sec. 1219.) The right to maintain such a suit in equity exists independently of who has possession. (Miner v.Beekman, 50 N.Y. 337.) A fortiori it exists, even though the mortgagee be wrongfully in possession. We still style such a suit one to redeem, whereas a mortgagor of real property now has the legal title, not as formerly a mere equity of redemption. The substantial rights of the parties should not be obscured by the use of terminology no longer strictly accurate. Indeed with respect to the personal property the action is in fact as well as in name one to redeem, as the mortgagee had the legal title. The mortgagor had a right of redemption, enforceable only in equity. (Pratt v. Stiles, 17 How. Pr. 211; Stoddard v. Denison, How. Pr. 296; Bragelman v. Daue, 69 N.Y. 69; Casserly v.Witherbee, supra.) The cases cited by the Appellate Division on this point do not hold the contrary.
I have thus far considered the case as though it *Page 422 were an ordinary action by a mortgagor to redeem, because the learned Appellate Division held that the complaint was rendered demurrable by the averment that Cochran took possession "without the consent of the plaintiff and against his protest." In my opinion the facts pleaded show at least three distinct grounds for equitable relief: 1. To have the assignment absolute in terms adjudged to be a mortgage. 2. To have the lien of the mortgage discharged on the ground that the debt had been paid. 3. To compel the defendants to account for the money received on the surrender of the lease. As an incident to the first and second grounds of relief the plaintiff was entitled to an account of the income and rents received by the defendants and their testator while wrongfully in possession, even assuming that he would not be entitled to such an account as an independent remedy.
The assignment and the collateral agreement to reassign on stated terms do not on their face constitute a mortgage. It will be necessary for the plaintiff to show by parol that the assignment was given as security for the payment of a debt. That he may do that in equity is well established. (Horn v.Keteltas, 46 N.Y. 605; Odell v. Montross, 68 N.Y. 499;Russell v. Southard, 12 How. [U.S.] 139.) The plaintiff does not ask alone that the assignment be adjudged a mortgage. He seeks a complete determination of all the issues between the parties involved in the matter in controversy.
The right to maintain an action in equity to have the lien of the mortgage discharged on the ground that the debt has been paid has already been sufficiently discussed.
Even assuming that the defendants have the right to insist that Cochran's wrongful entry precluded the plaintiff from treating him as a mortgagee in possession, they certainly cannot insist that the surrender of the lease and the acceptance of $100,000 from the lessors had no relation to the assignment of the lease held by them. *Page 423 They could not as assignees receive the money of their assignor in name, mortgagor in fact, and then insist upon holding it as trespassers wholly apart from any rights under the assignment. The case in that aspect is in principle precisely like the case of Horn v. Keteltas (supra), in which the plaintiff had judgment adjudging that a deed absolute in terms was intended as a mortgage and requiring the defendant to account for the rents and profits and the avails of the sales of the lands mortgaged.
In my view of the case enough has been said to demonstrate that the plaintiff is rightfully in equity. If so, the court undoubtedly has jurisdiction to make a complete determination of the matters in controversy between the parties. A closer view of the essential facts makes the case even plainer. Cochran held an assignment of the plaintiff's leasehold interest in certain real property and a bill of sale of certain chattels absolute in form but intended as security for the payment of a debt. He wrongfully took possession of the premises and chattels and he and his executors, the defendants, received and retained more than sufficient rents and income to pay the mortgage debt. Upon the termination of the lease the defendants received for improvements made by the plaintiff $100,000, the sum stipulated to be paid at their option by the lessors in lieu of giving a renewal for twenty years. The defendants now ask that the plaintiff be remitted to an action at law, but it is for the party injured, not for the wrongdoers, to say whether the wrongful acts of the latter shall be divorced from their character as mortgagees.
Equity treats a mortgagee lawfully in possession as a constructive trustee. (Hubbell v. Moulson, 53 N.Y. 225;Russell v. Southard, supra.) Should a mortgagee unlawfully in possession be in a better case? To put the question is to answer it. The law does not apply the rents and profits received by a mortgagee in possession to the *Page 424 payment of the mortgage. Such application depends upon the result of an accounting on equitable principles. (Hubbell v. Moulson,supra, at page 228.) If the view of the learned Appellate Division is sound a mortgagor in such a case as this would first have to bring an action in ejectment in which he would recover possession and as damages the rents and profits or the value of the use and occupation. He would then have to bring an action in equity to be allowed to pay the mortgage and have it discharged. Surely the law does not require such circuity of action.
The fact that the defendants' wrong has made it impossible for the plaintiff to recover the mortgaged property does not justify a court of equity in denying him any relief. (Meehan v.Forrester, 52 N.Y. 277; Mooney v. Byrne, 163 N.Y. 86.) I am unable to perceive any distinction in principle between those two cases and this. In both the plaintiff sought to have deeds absolute in form adjudged to be mortgages and to redeem. In both the defendants had wrongfully sold the premises, and in both the defendants were held liable to account in equity either for the proceeds of the wrongful sale or the value of the land. The acceptance in this case of the stipulated surrender value of the lease was the equivalent of the wrongful sale in those cases.
While the relation between mortgagor and mortgagee is not strictly fiduciary the courts carefully scrutinize transactions between them. (Russell v. Southard, supra; Odell v.Montross, supra.) If the mortgagee wrongfully take possession, the mortgagor may of course maintain ejectment but that remedy is possessory only and has no relation whatever to the rights of the parties as mortgagor and mortgagee. I can think of no reason, and none is suggested, why the mortgagor may not in such case waive the trespass, elect to treat the possession of the mortgagee as lawful, and in one action get all the relief to which he is entitled, precisely as was done in Shelley v. Cody (187 N.Y. 166). It is true the point *Page 425 was not raised in that case. Apparently it is now asserted for the first time in this state that a mortgagee in such case has a right to insist upon being treated as a trespasser. The right of a mortgagor to maintain a suit in equity against a mortgagee wrongfully in possession was plainly recognized by this court inBecker v. McCrea (193 N.Y. 423), which involved the construction of section 379 of the Code of Civil Procedure. It was there decided that in using the words "adverse possession" the legislature meant precisely what it said. It is quite true that that section was intended to prescribe a statute of limitations of twenty years to an action to redeem real property from a mortgage with or without an account of rents and profits, but only in case the mortgagee in possession, or those claiming under him, "have continuously maintained an adverse possession of the mortgaged premises." In Miner v. Beekman (supra) it was held that in respect to the time within which such actions must be instituted, an action to redeem fell within section 97 of the old Code, the general section prescribing ten years as the time within which actions, not otherwise specially provided for, must be brought. In that case Judge GROVER said, referring to a case where the mortgagor had continued in possession, that the right to maintain the action for the purpose of removing a cloud from title is a continuing right "that may be asserted at any time during the existence of the cloud; never barred by the statute of limitations while the cloud continues to exist." (p. 343.) Wherefore he concluded that the statute did not commence to run until the mortgagee entered into possession. He then said: "The statute, I think, would not then commence running had the defendants or their grantor entered and continued in possession, avowedly as mortgagees, and would not run while they so held, for the reason that it is a continuing right of the owner to pay off and discharge a mortgage, and, by so doing, regain the possession of the land." (p. 344.) So that the law as declared by this court then *Page 426 was that there was no limitation of time to an action to redeem if the mortgagor continued in possession and none if the mortgagee had entered and continued in possession avowedly as mortgagee, but that if the mortgagee was in possession claiming in hostility to the mortgagor the action to redeem must be brought in ten years. Chief Judge CULLEN in Becker v. McCrea (supra) quoted the dictum of Judge GROVER in Miner v.Beekman (supra), referred to the note of Mr. Throop to section 379 of the present Code, and said: "The use of the word `adverse' in the light of the previous intimation by this court in the Miner case seems to indicate very clearly that it was the intention of the legislature to incorporate that intimation or dictum into the statute law." (p. 429.) The effect, therefore, of section 379 of the Code of Civil Procedure, as construed by this court, was to prescribe a statute of limitations of twenty instead of ten years in the single case of an adverse holding by a mortgagee, and to recognize the dictum of Judge GROVER that in case the mortgagor was in possession, or in case the mortgagee was in possession avowedly as such, the right to redeem was a continuing right and could be asserted at any time. Only so could the word "adverse" as used in the statute be given effect according to its ordinary meaning. Chief Judge CULLEN, in answer to what the writer had said in the Appellate Division in that case, instanced a case to which the statute might apply where the mortgagee had entered with the consent of the mortgagor, namely, where after such entry he had assumed to convey the land as the absolute owner thereof or had repudiated his relation as mortgagee; but, as far as the mortgagor's right to maintain an action to redeem is concerned, there can be no distinction between a tortious entry and a tortious possession following a lawful entry. In either case the wrongdoer may be treated as a trespasser, but the point is that it is open to the mortgagor to elect whether to treat the possession of the mortgagee as tortious or as lawful. *Page 427
The order of the Appellate Division should be reversed, the judgment of the Special Term affirmed, with costs in the Appellate Division and in this court, and the question certified answered in the affirmative.