The opinion of the court was delivered by
Bennett, J.The plea in abatement alleges, that James McDaniels was the owner and landlord of the premises in question, and that the defendants were his tenants, and that he (McDaniels) was not joined in the suit. The replication traverses the allegation, that *642the defendants were the tenants of McDaniels. The county court, after the evidence was put in, held that the defendants had failed to sustain their plea in abatement, and so instructed the jury. We are now called upon to revise this ruling of the county court.
In order to ascertain in regard to the correctness of the ruling of the court below, it is necessary to examine carefully, to see what the testimony was, — which seems to have been put in without objection. It is difficult to see how the recovery of the premises in the action of ejectment by McDaniels against Savid Bartlett, (one of these defendants,) in 1826, can in any way tend to establish a tenancy in these defendants, of which the plaintiff was bound, at Ms peril, to take notice. Under our statute, it is true, the recovery is conclusive, as to the title, against Savid Bartlett; but it has no tendency to prove a tenancy, — at least such a one, as our statute contemplates, when it enacts, “that all actions of ejectment shall be brought, as well against the landlord, if any there he, as against the tenant in possession.”
The statute of ] 797 was the same with our present statute. Ae an early day that statute received a construction, which has ever since been followed. In Wallace v. Farnsworth, 2 Tyl. 295, it was held, that the plaintiff was not obliged to join a landlord with the tenant in possession, who held by a parol lease, or by a written unrecorded lease, unless it was shown, that the plaintiff had, at the time of the commencement of the suit, notice of such written lease. In Brush v. Cook, Brayt. 89, (1819,) it was held, that a landlord is not concluded by a judgment in ejectment against his tenant by a parol lease, the landlord not being joined in the suit. In that case it was said, that the plaintiff’s writ will not abate, if the landlord is not joined in the suit, in a case in which the tenancy is by parol, and unknown to the plaintiff This, we think, has been the uniform construction of the statute, and is the only reasonable one. No doubt, a parol tenancy is sufficient to render the landlord liable to be joined in the suit against the tenant: and in the circuit court of the United States it has been held, that proof of an outstanding mortgage from the tenant in possession to his co-defendant was sufficient to render the latter liable to be sued as landlord. See May v. Albee et al., cited in Washburn’s Dig. 324, sec. 77. I understand the same question has been decided in the same way in the *643circuit court, within some two years. I am not aware, that this question has been before the state courts.
Though the circuit court have decided, that the mortgagee may be joined with the mortgagor in possession, yet it by no means follows, that the same court would hold, that he must be joined, to save an abatement. The mortgage, before entry and foreclosure, is deemed but a pledge, a charge, or lien upon the estate, subject to which the legal rights and remedies of others may be sought, asserted and enforced in the same manner, as if no such mortgage existed. It is true, that the mortgagee is taken as the owner of the land in fee, as against the mortgagor and all persons claiming under him ; yet the mortgagor, as to all persons except the mortgagee and those claiming under him, is to be considered, so long as he remains in possession, as the owner.
It is quite apparent, we think, that the mortgage deed, which is made a part of the case, from Abner Bartlett (one of the defendants) and Marcus Bartlett to McDaniels cannot, of itself, create such a tenancy in these defendants, as to render it necessary to join McDaniels in the suit. Savid Bartlett, the other defendant, is in no way connected with the mortgage; and the plaintiff, who stands as a stranger to it, may enforce any rights, which he. has against the mortgagors, in the same manner, as if no mortgage existed, subject to the mortgagee’s rights, if paramount to those of the plaintiff.'
So the bare recovery by McDaniels, in the action of ejectment against Marcus Bartlett and Abner Bartlett, in 1842, can have no effect to create a tenancy in the defendants under McDaniels, which the plaintiff was bound to notice. The evidence, which went to show that the premises, since that time, had been occupied by the defendants with the express consent of McDaniels, and that they had paid him rent, was but evidence of a parol tenancy. Besides, the case expressly finds, that there was no written lease from Me Daniels to the defendants, and no evidence tending to show that the plaintiff knew of the payment of the rent to McDaniels, or knew that he was in any way landlord.
The evidence, which seems to have been put into the case to show that the defendants occupied under McDaniels from 1826 to February 11, 1840, is entirely out of the case. This suit was not *644commenced, until long after such tenancy was ended. Besides, while it existed, it was but a parol tenancy.
On the whole, then, we think the county court were right, in holding that the testimony did not show such a tenancy, as to render it incumbent upon the plaintiff to have joined McDaniels in the suit, — or, in other words, that it did not maintain the issue on the part of the defendants.
The judgment of the county court is affirmed.