(dissenting.) — Hot obj ecting to the reversal of the cause, and concurring therein, I find myself not able to agree with the majority of the court in the direction given to the case, and the opinion expressed as to the rights of the parties in the suit to be hereafter determined.
In my opinion, the general rule of law is, that the lessee has no such right in the land as that he can, like a mortgagee, have it sold for his benefit, or for the protection of his interests in the lease. That is the effect of the decision in this case.
The foreclosure of the mortgage in this case conveyed the *233whole interest in the property to Lockhart, the purchaser, and the money he paid represents the value of the improvements made hy the lessee, as well as the value of the rest of the property, and the lease is no incumbrance on his title thus acquired; if the lessee has equitable rights, it is to a part of that money,- and he should have asserted his rights by intervention, or by some equitable proceeding, in which both mortgagor and mortgagee were parties, before the sale of the land to a third person (Lockhart) under the mortgage.
A lessee has no seizin of the land, his possession being held in this State, without any known exception heretofore, to be the possession of the lessor, who has the legal or equitable title, so as to be the owner of the land; and the mortgagor having leased the land after the execution and recording of the mortgage, without the consent or encouragement of the mortgagee, in respect to the terms of the lease, the mortgagee was not bound to make the lessee a party to the suit for foreclosure.
These general propositions, it is believed, are well sustained by both the English and American decisions, and wherever a contrary rule has been adopted it has been influenced hy statutes relating to leases, which give them the legal .effect of an interest in land, a species of estate in land of a higher order than a term, as known at common law and in this State. (1 Hilliard on Mortgages, 193, et seq.; McDurmot v. Burke et als., 16 Cal., 580; McCall v. Lenox, 9 Serg. & R., 308; Averill v. Taylor, 8 N. Y., 52; Bacon v. Bowdoin, 22 Pick., 401.)
I think, therefore, the remedy of the lessee, Eleiber, is upon his indemnity against the mortgagor, and not against Lockhart, to have the land resold, under the facts as presented in the record.