Upon the case stated, it appears that in 1833, William Capron, being owner of the estate, leased the same to the defendants for a term of twelve years from April 1st 1833, at a rent of $ 130, payable annually, on the 1st of April each year during the term.
On the 5th April 1837, said Capron mortgaged the leased premises to the plaintiff, to secure the payment of $ 2250, in one year from date, which has never been paid. In May 1837, the plaintiff gave notice of -this mortgage to the defendants. The defendants have paid to the plaintiff the annual rents due April 1st 1838 and 1839, which accrued after the mortgage to the plaintiff; but they refuse to pay the rent due April 1st 1837, which became due and payable to Capron, the lessor, five days before his mortgage to the plaintiff; and the question is, whether the plaintiff is entitled to recover that year’s rent.
The mortgage from Capron to the plaintiff described the premises as under lease to Thayer & Fairbanks, for a term of years, and adds — “should the conditions of the mortgage be broken, the rents, dues, and demands, of every kind arising out of said leased premises, due or becoming due, shall be paid to said Burden, his executor, and all the leases shall be assigned to him, and he is authorized to demand and receive the same in his own name, or that of said William Capron, and proceeds appropriated to the payment of said mortgage.”
The court are of opinion, that the plaintiff has no right to recover the year’s rent which fell due and was payable, and in arrear, when he took his deed of Capron. When a man takes a deed, either by way of absolute conveyance or mortgage, of an estate which is under a lease for years, he must take such estate as his grantor had ; which, in that case, is a reversion —
Formerly, in order to constitute a privity of estate between the purchaser of the reversion and the lessee, so as to enable the former to maintain an action of debt for rent, attornment was necessary. But by St. 4 Anne, c. 16, § 9, a grant of the reversion is good and effectual without attornment. Moss v Gallimore, 1 Doug. 279. That statute having been passed long before the revolution, and this provision being a rule in amendment of the common law, we may probably consider it in force here. Commonwealth v. Leach, 1 Mass. 61. But if otherwise, the rule itself is well established on the authority of long usage, and its adaptation to the more simple tenures, which were in use under our former government. Farley v. Thompson, 15 Mass. 25, 26.
The general principle, that all future accruing rent passes with the reversion, is confirmed by the case of Birch v. Wright, 1 T. R. 378. These principles apply to all effectual conveyances of the reversion, whether by absolute deed or by mortgage. Then let us apply them to the case of a mortgage of an estate under lease, and with reference to other cases determining the relative rights of mortgagor and mortgagee.
It is now well settled, that a mortgage in fee transfers presently all the title which the mortgagor has in the estate ; and
But in case the premises, at the time of the mortgage, are under lease for a term of years, the mortgagee cannot disturb the possession of the lessee, who has a prior title ; and therefore he cannot enter. But as the mortgage transfers the rever sion, to which the rent is incident; as it binds the whole of the realty, of which the rents afterwards accruing are a part; he may give notice of his right to the lessee, and of his election to take the rents ; and then the lessee becomes bound to pay the rent to him as mortgagee. But if he does not elect to take the rents and account for them, then, in analogy to the right of a mortgagee in fee to enter or not, at his election, the mortgagee of a reversion may forbear to give notice to the lessee ; and in that case, the lessee will be protected in paying the rent to the mortgagor. And so it seems to be provided by the statute of Anne before cited, that no tenant shall be prejudiced by the payment of rent to his landlord, until he has notice of the transfer of the reversion. This, it is strongly intimated by Mr. Justice Buller, in the case of Birch v. Wright, 1 T. R. 385, would have been the rule of the common law, if no such proviso had been expressed in the statute.
But it seems to be extremely well settled by the cases, that the rent, which became due and was in arrear at the time of the assignment of the reversion, whether absolutely or by way of
But another ground is taken in argument, arising out of the special terms of the mortgage, as above cited. It is contended that by force of that special clause, Capron assigned to the plaintiff rents, dues and demands arising out of said leased premises, due or becoming due, &c. It may well be doubted whether this did not look to the contingency of the condition being broken by the non-payment of the debt, and mean to trans-er to the mortgagee such sums as should be then due. But the decisive answer is, that this, if available at all, was nothing more than the assignment of a chose in action. The year’s rent then due and in arrear was a debt, and though it arose out of the land, yet had become wholly detached from it. All the above authorities, which go to show that it had ceased to be part"of the realty, and that it did not pass by the conveyance of the land, establish the point, that it was a mere chose in action. Being so, it cannot be recovered by the plaintiff in his own name, whatever
According to the terms of the report, the order must be, that a new trial be granted ; but as this opinion is decisive of the plaintiff’s case, the proper course will be, if the plaintiff consent, to enter a nonsuit.
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See Willard v. Tillman, 2 Hill's (N. Y.) Rep. 274.