*439The opinion of the Court was drawn up by
Emery J.A verdict having been rendered for the plaintiff on the Judge’s instruction to find it, the action is brought before us by' exceptions with a view of testing the correctness of those instruc-' tions.
The case has a portion of novelty in it. A mortgagee, as the plaintiff is, became so by the defendant’s deed, executed on the 10th of July, 1833, given to secure the payment of a note of hand for 468,80, payable in four equal annual payments. The deed and note were read in evidence. From the time the mortgage was given, the defendant has continued in possession. But he would relieve himself from responsibility in this suit, on the ground of defendant alleging in a brief statement under the general issue which was joined, that he was not tenant of the freehold, but was tenant for a term of years. If this defence be a good one, the defendant must have the benefit of it. For he has shewn that on the 26th of August, 1836, he gave a deed of the premises to one Lewis Wilson, and besides this, would have shewn and produced in evidence, a lease to him, the defendant, from the plaintiff, of the premises for one year without date, if the Judge would have indulged iu doing so. And if the counsel of the defendant had expected to show that the lease was a subsisting lease in force at the time of the commencement of this action, the Judge stated, that it should be admitted, but otherwise, not. The defendant’s counsel, with that integrity and directness, which ought to characterise the conduct of the bar in the management of causes in courts of justice, replied that he did not expect to shew that it was so in force, but that it was given some time after the mortgage was given.
The defendant then could not pretend to be more than a tenant at sufferance, he came into the possession by lawful title, and after the determination of his interest, he holds over by wrong. If we might indulge in conjecture, we might suppose that the lease was given in the expectation that it might appear that the plaintiff had entered for the breach of the condition ; and now, that the lease is determined, he apprehends that his evidence on that subject is not so clear and unquestionable as might be desirable, and he therefore commences his action.
*440Whether such are his views we caririot assert with certainty. But we must perceive that the defendant is presented before us clothed only with the naked possession, and he cannot maintain it against his own deed to the plaintiff. The lease has spent its force. For if the defendant has right under the lease, he has alienated that by his conveyance to Lewis on the 24th of August, 1826.
As against this defendant, the plaintiff is restored to all his former rights, and has undoubted right to maintain the action.
Exceptions overruled.