This is an action of ejectment based upon the ground that defend* ants are tenants holding over without permission of their landlord.. The premises in question- were- conveyed to Selena Barson, the mother of the plaintiffs, by a warranty deed dated April 23,. 1853,. and she executed a mortgage upon the same on October 1, 1853, to-Secure the payment of the sum of $1,000.
Selena .Barson died intestate in November, 1862, still seized- and possessed of the premises,, and leaving, her surviving her -husband,; Charles, Barson, Sr., William G. Barson and Charles IT- Barson,. the plaintiffs herein, and . George Barson, her only.'heirs .at law.. The son George Barson disappeared in about the year 1879. He-was.at that time unmarried and without children, and since^ that time no news' of him has been received by aiiy of his family. - .
.Upon the death of Selena Barson, her husband went into possession.of the premises, as tenant by. the curtesy, and in March, 1894,. he leased.the premises in suit to the defendant Agues Ii.'Mulligan (then ■ Agnes Murphy) for a term- of live years -and four months-from January ■ 1, .1895, which lease would, by its terms, have expired on May 1, 1900. In April, 1894,. Mrs. Mulligan sublet a. portion of the premises to one Murphy for the term of her lease.,, in which lease it was provided that the term should end upon the. death of the .original lessor, Charles Barson.. Murphy assigned .Ma-lease to one- Cox. The defendant Agnes Mulligan Went.into the-possession of. that, portion of the leased. premises not sublet by. her and has remained in possession ever since.
On October 2, 1897, the tenant by the curtesy, Mrs. Mulligan’s-lessor, died, at which time the defendants. and Cox were in possession of the,/premises? and thereafter Cox attorned to and paid rent.to .the plaintiffs, and notice to quit and surrender possession was-served upon each of these defendants, but--they did not surrender.
In.October, 1897,-the plaintiffs leased the whole of- the-premises *493to Cox, already in possession of a portion thereof, and recognizing -them as landlords, for a term of of two years and six months from November 1, 1897, but being unable to secure peaceable possession of the portion occupied by the defendants, such lease was canceled and surrendered in December, 1897, and thereafter on April 10, 1899, they leased to him the portion of the premises of which he was already in possession. In the meantime the defendant Agnes K. Mulligan had become the owner of the mortgage executed by the mother of the plaintiffs. This mortgage had been assigned by her on July 6, 1888, to one Steers, as it appears, as collateral security for a loan from a bank of which he was an officer, and on October 6, 1897, four days after the death of her lessor, the mortgage was re-assigned to her. The defendants contend that there is no proof that George W. Barson, the brother of the plaintiffs and their cotenant, if alive, died intestate and unmarried or without lawful issue, and, consequently, that the plaintiffs are only entitled to an undivided two-thirds interest in’ the premises and can only maintain an action for such interest; that the action cannot be maintained-for the reason that, at the time it was begun, the plaintiffs had put it out of their power to enter upon said premises by leasing the whole to Cox; and finally, that the defendant Agnes K. Murphy Mulligan was, at the time of the death of Charles Barson, Sr., her landlord, in lawful possession of the premises as mortgagee in possession, and that an action will not lie to disturb such possession.
It appears from the testimony that George W. Barson was last heard of in 1879; consequently, at the time when this action was commenced, in 1898, nineteen years had elapsed which had lengthened to twenty-one years at the time of the trial. Such circumstances are sufficient upon which to predicate the presumption of his death, unmarried and intestate. (Karstens v. Karstens, 29 App. Div. 229 ; Matter of Sullivan, 51 Hun, 378 ; Cambrelleng v. Purton, 125 N. Y. 610 ; Mitchell v. Thorne, 134 id. 536.)
The lease to Cox constituted no obstacle to the maintenance of this action. It is well settled that where the lessor is the owner of the property, having the right to possession of the same, he retains authority to institute proceedings against a person claiming the same to put the tenant in possession, (Imbert v. Hallock, 23 How. Pr. *494456; Whiting, v. Edmunds, 94 N. Y. 309; Code Civ. Proc.. § 2232.) There can be no question but that the- lease executed by-Charles Parson, Sr., terminated upon his death by operation of. law, and the plaintiffs as reversioners became entitled to the immediate possession of the-premises as against everybody claiming under such lease, and they had the right to lease the property to any person whom they chose, and to; take such steps as might ( be-necessary to place such tenant in possession; among the remedies which they might invoke for that purpose is this action, and such lease cannot be construed as constituting any bar to its maintenance. It is quite evident from the testimony that Mrs. Mulligan recognized the fact that the lease tinder which she held could not operate for a longer period than the life of her lessor, and it is also evident, that, at the time of- his death,- she made no claim or pretense of holding by any other instrument than this lease. She at that time asserted no title or right of possession by virtue of the mortgage,, and-the fact that she was not then aware that the record title to the mortgage was not- in her, and that four days after the death of her lessor she took steps to procure 'an assignment of that mortgage, from Steers to herself, is satisfactory evidence that prior thereto-she claimed no right of possession thereunder. While it is true that having paid the note for which the mortgage was held as collateral' security she had title to the same, yet she had made no claim. thereunder, and she was not aware that the assignment was necessary to perfect her right; the mortgage itself had been for a longtime in her possession without knowledge of this infirmity, ánd such fact indicates pretty conclusively that the assertion' of this claim Was an afterthought made necessary by the termination of the lease. The court would have been justified in finding that she made the fiaim under the mortgage in order to resist the plaintiffs’ right. We think the. claim unavailing in this action. It is not pretended that she ever instituted any proceeding to foreclose the mortgage, or that any judgment was ever rendered under which she acquired. possession, and it is not pretended that the mortgagor or the plaintiffs ever gave their consent to an occupancy under the mortgage. It was said in Bennett v. Austin (81 N. T. 308), “ The right of. a mortgagee to the rents of land, without the interposition of the equity power of the court before he has fore*495closed the mortgage, depends upon the fact whether-the possession is a lawful one, either by consent of the proper party or by means of legal proceedings. (Van Buyne v. Thayre, 14 Wend. 236; Mad. Ave. Bap. Ch. v. Oliver St. Bap. Ch,,- 73 N. Y. 94.) The consent must be from the mortgagor or the party who has. authority to give such consent. (Newton v. McKay, 30 Mich. 381; Russell v. Ely, 2 Black [U. S.], 575.) There is no authority for the doctrine that the mortgagee can go to the lessee and deprive, the lessor of his right to the rents without the consent of the lessor.”
Mrs. Mulligan’s possession was by virtue of the lease in its inception and it so continued during her occupancy thereunder. The life tenant could not incumber the property in any form or for any instant beyond the duration of his life. When that terminated, her riglit, as against the legal owner, also terminated. The continuance of the possession after the death of her lessor was wrongful, and she could not by. the mere assertion of a claim change that which was previously wrongful into a rightful possession, nor could; she change by her own act the rights of the parties in the premises,, and to constitute herself a mortgagee in possession required either that the plaintiffs consent, as the mortgagor was dead, or the recovery of a judgment for the foreclosure of her mortgage. Site did no act whatever except to assert the claim, and there being no acquiescence in the assertion of such right by the plaintiffs she acquired no right thereunder, and her possession, as against those plaintiffs,-was, and continued to be, wrongful. None of the cases relied upon by the defendant support the contention.
In Madison Ave. Bapt. Ch. v. Oliver St. Bapt. Ch. (73 N. Y. 82) it appeared that the defendant was lawfully in possession of the- mortgaged premises by the consent of the plaintiff. While it is true that the defendant in that action had failed to get title under its deed, yet, as it had been placed in possession by the parties seeking to avoid the conveyance, it was held that such possession was by consent, and, therefore, valid, even though the possession was not given with the express object in view. The case, however, is a. distinct authority for the proposition that in order to constitute a. mortgagee in -possession with the rights appertaining to such relation, it nutst be either under a judgment or a proceeding seeking to-enforce the mortgage, dr with the consent of the mortgagor or other *496person having authority to give such consent. In all of the cases where the question , has arisen and the right has been supported, either one or the other or all of these conditions appeared. It-may ,not be necessary- that the judgment under which the party enters is in all respects valid, but where claim is made there must have been either the. judgment or proceeding, or consent under which the -entry was made and the holding had. -None of these facts appear in this case. The only thing which does appear is that the defendants were in possession under the lease and after its termination as wrongdoers, and that Mrs. Mulligan held a mortgage which was due and unpaid. No other fact appears upon which she can base ■a claim of being a mortgagee in- -possession. Her possession was peaceful in the sense that nobody during the term of the lease, or at its expiration, had interfered with it, but this, is not the peaceful possession which the law contemplates as .sufficient authority to support thé claim ' of a mortgagee in possession, and furnishes no basis of right for the assertion of such claim. There may be a peaceful possession of premises and yet not be a-■shadow of right thereto. The law requires that the possession shall' not only be peaceful in character but lawful in fact, before rights can spring out of the same in favor of the occupant, and as we have Seen, to giv.e right as a mortgagee in possession- requires not only that the possession be acquired peacefully, but in the manner before specified. It seems clear, therefore, that the defendants have failed in this contention. It is matter of small consequence whether the Conventional relation of landlord and tenant. existed ■ between the plaintiffs and the defendant Mulligan at the time of the death of the tenant by the curtesy. Such would evidently be their relation had the property descended to them from the lessor of the ■defendant Mulligan, but as they took through their mother nothing came to them from such source, except that such event vested them with an immediate right of possession of the property. By section 193 of the Real Property Law there is devolved upon the reversioner of the property of all the rights: which "the grantor or lessor had in the premises. It is clear, therefore, that by virtue of this provision the plaintiffs might have recognized the lease and enforced the pfovisions -thereof had both parties, chosen to act thereunder' as a continuing instrument. The effect of the provision is to confer upon *497the. reversioner the same right which the lessor had thereunder. The plaintiffs, however, were not bound to recognize the lease, as it •ceased to have force and effect by operation of law, but the defendant was none the less bound at the election of the plaintiffs to surrender the premises on demand. The fact, therefore, that the descent of the property is not from the lessor does not change the rights or liabilities of these parties.
If these views are sound, it follows that the judgment should be -affirmed, with costs.
Van Brunt, P. J., concurred.
Judgment reversed, new trial ordered, costs to appellants to' abide event.