(with whom Whitehead, Randolph, and Speer concurred), delivered the following dissenting opinion s
The judge at the trial refused to permit the defendant to prove improvements made, not by Sanderson the tenant, hut by Smith the mortgagor, under whom Sanderson had gone into possession. In this he was clearly right. Lasting improvements made in good faith by the defendant, have been allowed him in this action, against the rents and profits claimed by the plaintiff. 2 Greenl. Ev. § 337. But it is difficult to see on *644what equitable ground the defendant can claim to be allowed in mitigation of damages, for improvements made, not by himself, but by another.'
The real question in this cause is, whether the action of trespass for mesne profits lies against a lessee of the mortgagor, subsequent to the mortgage, after recovery in ejectment and entry by the mortgagee. In my opinion the action will lie.
In Vermont it has been so expressly decided. It has been there held, that the mortgagee is entitled to recover the rents and profits against the assignee of the mortgagor from the time of notice to quit by the plaintiff, .or in the absence of such notice from the commencement of the action of ejectment. Babcock v. Kennedy, 1 Verm. Rep. 457; Lyman v. Mower, 6 Ib. 345. In Wilder v. Houghton, 1 Pick. 87, it was held otherwise. As remarked by counsel on the argument, whatever may be the true doctrine of the common law, the case last cited was probably decided rightly upon the local and peculiar law of Massachusetts in relation to mortgages. Standing upon their peculiar law of mortgage, it was entirely unnecessary for the court in that instance to appeal to foreign authority to sustain its judgment, and in which appeal, as it seems to me, the court fell into error as to the effect of the authorities cited by them. Undoubtedly the mortgagor or his assignee in possession cannot be called upon to account for the rents and profits to the mortgagee and for the reason given in the cases cited: the party by his ejectment may dispossess the tenant, and thereby entitle himself to the rents and profits at law. There can be no decree to account for rents received by the mortgagee in his own right, though by the implied assent of the mortgagee. But upon the withholding of that assent, then the mortgagee is referred by courts of equity to his legal remedies.
I have not been able to find one English case, in which the point has been expressly decided. It seems, however, strongly implied in Keech v. Hall, Long. 21, that the action will lie, and that case is cited for this point, in Adams on Ejectment, p. 384, (N. Y. Ed. 1840.) Lord Mansfield, in delivering the opinion of the court in Keech v. Hall, by which it was settled that a mortgagee might recover in ejectment against such tenant, with*645out giving him notice to quit, said : “ It was said at the bar, that if the plaintiff, in a case like this, can recover, he will also be entitled to mesne profits from the tenant in an action of trespass, which would be a manifest hardship and injustice, as the tenant would then pay the rent twice. I give no opinion oil that point; but there may be a distinction, for the mortgagor may be considered as receiving the rents in order to pay the interest, by an implied authority from the mortgagee, till he determine the will.” In ejectment the tenant is treated as a trespasser. The action of ejectment is maintained against him upon the ground that at the time of the service of the declaration, if not before he was a trespasser. The consequence w^as seen and suggested by counsel, that he was liable to an action for the mesne profits, and in the remarks cited, this was impliedly admitted by the court.. The active mind of Lord Mansfield at once suggested the true answer to the apparent hardship. In substance it is, that the mortgagee shall not be permitted to recover the profits by way of damages, for that period, during which he had, by permitting the mortgagor to remain in possession, given him an implied authority to receive the rents and profits. It is a complete answer to so much of the argument as refers to the supposed hardship towards the tenant. It appears to me to be in entire accordance with- those equitable rules, some of which, since more clearly settled, now govern this action.
The recovery in ejectment is conclusive evidence of the lessors title from the time of the demise laid in the declaration: but of his right to recover the mesne profits of the defendant in ejectment, only from the time of the service of the declaration. Aslin v. Parker, 2 Burr. 668; Dodwell v. Gibbs, 2 C. & P. 615. But it seems sufficient to enable the plaintiff to recover some damages from the time of service of the declaration. If the plaintiff seek to recover mesne profits for an antecedent period he must give distinct evidence of the defendant’s possession, or of whatever may be necessary to entitle him so to recover.
The tenant while in possession under the implied assent of the mortgagee and paying the rents and profits, under that implied assent, to the mortgagor, cannot during that period be held also responsible to the mortgagee. But if the mortgagee *646chooses to enforce his rights he may at any time (at any rate after forfeiture) (a) enter, take the rents and profits, and eject the tenant. An eviction by the mortgagee, by title paramount to the subsequent lease, undoubtedly suspends the subsequently accruing rent and would be a defence to an action by the mortgagor for such rent. But it is not necessary for the tenant to wait for an ejection by form of law. The tenant, upon notice given, may acknowledge the title of the mortgagee, put him by attornment in constructive possession and pay him the rent; and such implied eviction, will be a defence to any demand by the mortgagor, for rent accruing subsequently. Note to Moss v. Gallimore, 1 Smith’s L. Cas. (Law L. Ed. 1844,)p.426. The case of Bonders v. Vansyckle, 3 Halst. 313, is not in accordance with the doctrine of attornment just stated ; but so far I apprehend, that ease is not to be considered law, having been, as is well known, reversed in error on this very ground. There is, then, no hardship upon the tenant or assignee of the mortgagor. If he resists the entry of the mortgagee and prevents him from taking the rents and profits, he becomes from that time an actual trespasser, and ought to answer in damages therefor. Under the equitable rules which govern this action, and by which the remedy against the tenant is controlled, I apprehend the present action will not only lie, but is necessary for the security of the mortgagee.
In Liford’s ease, (11 Co. 51,) there is a dictum of Lord Coke, that the disseisee, after re-entry, cannot recover in an action for mesne profits against the feoffee, lessee, &c. of the disseisor; but that in such case the disseisee shall recover all the mesne profits against the first disseisor. The reasons given are, that this fiction of law that the freehold always continued in the disseisee, shall not have relation to make him, who comes in under title, a wrong doer vi et armis ; and that it is to be presumed, that the lessee has given a recompense to the disseisor, *647and therefore that the latter should be charged with the whole. The same law if the first disseisor is disseised, because otherwise the second disseisor would be twice charged. Mr. Coote, in his treatise on the Law of Mortgages, (p. 345 Law Lib. Ed. 1837) says : that the lessee, coming in by title under the mortgagor in possession, appears to be within the role, and consequently not liable to an action for mesne profits.
The rule, as stated, is by no means clearly established. Many of the authorities on both sides are collected in the American notes to Moore v. Hussey, Hob. 98 ; in which case the same rule is laid down arguendo, and the same reasons given. The authorities in the older books in conflict with this rule are numerous and respectable ; the rule was stated in Liford’s case extrajudieially ; and Lord Coke himself says, that in his day, there was a great variety of opinions in the books. I think it will be found, that of a later date, the weight of authority is against the distinction. See Com. Dig. “Trespass ” (B. 2;) Holcomb v. Rawlings, Moore 461; S. C. Cro. Eliz. 540; B. N. P. 87; Emerson v. Thompson, 2 Pick. 473; Washington, J. in Green v. Biddle, 8, Wheat. 75; Morgan v. Varick, 8 Wend. 587.
The rule was discussed, although not settled, by Chief Justice Ewing, in Bacon v. Sheppard, 6 Halst. 197. The decision in that case was based on the doctrine of Menvil’s case, which, indeed, seems to be only a more narrow and reasonable application of the same rule. In the rule already adverted to, it will be observed, that the first or actual possession, prior to the period of possession by relation, was disturbed by act in pais, or disseisin without color of law or legal procedure. In Bacon v. Sheppard, the disturbance of the plaintiff was under a legal proceeding by writ of Hah. fa. possessionem, sued out on judgment by default in ejectment; but the judgment and execution being afterwards set aside, lie was restored to possession by writ of restitution. It was resolved, in Menvil’s case (13 Co. 21,) that when possession of land is obtained under an erroneous judgment, and, the judgment being set aside, the original possessor is restored ; he who is thus restored, may maintain an action of trespass against him who obtained possession under the erroneous judgment, and in such action shall recover all the *648mesne profits by whomsoever taken, and for intermediate injuries by whomsoever done : but he shall not have an action of trespass against a stranger, or for an intermediate trespass on him in actual possession; and he who had the intermediate possession under the judgment may, even after restitution, recover in trespass for an injury while he was in the actual possession ; and upon this principle, that he is answerable for the mesne profits and intermediate injuries to him who was thus dispossessed and restored. This principle was applied in Bacon v. Sheppard, especially for the protection of one who came in by title under the party who obtained an erroneous judgment; and who being possessed by process of law, might justly be presumed by strangers to be rightfully possessed, while the judgment and possession under it continued in force.
So in Case v. JDeGoes, 3 Caines 261, cited by Chief Justice Ewing, in which case the person in possession had the possession lawfully. Beyond this the rule cited from JLiford’s case, has been expressly repudiated in the state of New York. In Morgan v. Varick, 8 Wend. 587, the point being directly before the court, Chief Justice Savage, who delivered the opinion, said, that in all the prior cases before that court, in which the expressions of the judges indicated an approval of the rule, the opinion was uncalled for. “ If it be law,” said he, “ any irresponsible person may turn the owner forcibly out of the possession of his real estate, sell the buildings and the timber, and thereby destroy the value of the property; he may sell it, too, under ever so suspicious circumstances, for less than one-quarter of its value, and according to the doctrine quoted, the purchaser is safe, and the owner has no remedy but against the trespasser only. Fortunately for the owners of real estate, such is not. now the law, whatever it may have been in the time of Lord Coke.” The principle involved in Case v. DeGoes, was left untouched : but it was held, that the remedy of trespass for mesne profits extended, as well against a stranger acquiring title from the disseisor, as against the disseisor himself.
It will be difficult to reconcile the rule, as applied by Mr. Coote, with the unquestioned course of decision and practice in the courts both of England and this country at the present *649day. The action of trespass for mesne profits may be brought either against the person who was a defendant in ejectment, or who was the tenant in possession at the time of the ejectment brought, or against a former occupier. Any person found in possession after a recovery in ejectment, is liable to an action, and it is no defence to say that he was upon the premises as the agent and under the license of the defendant in ejectment. 2 Roscoe, on Real Actions, 706 (Law Lib.) When during the pending of an action of ejectment, the defendant gives up the possession to a third person ; after judgment in ejectment such third person is liable for the mesne profits. Doe v. Whitcomb, 8 Bing. 46; Jackson v. Stone, 13 John. 448. The plaintiff recovers against each occupant for the time he has been in possession. It is doubtful if ejectment can be brought against the tenant for the holding over of a sub-tenant. The landlord, apart from any sanction or collusion on the part of the principal tenant, must look to the sub-tenant, so holding over, for the mesne profits; for the defendant, in an action of mesne profits, must be the person in actual possession aud trespassing. Burne v. Richardson, 4 Taunt. 720; See Adams’ Eject. 383. These cases appear to be in conflict with the rule to the extent claimed; aud the rule must be carried to a dangerous extent, if the action can be denied upon the grounds stated by Mr. Coote.
It may be said, that in the case of a sub-tenant just stated, though he comes in by title under the tenant, yet that when he holds over, he becomes an actual trespasser, the disseisor himself, and therefore answerable in damages. As I take it, it is the very case of the lessee of the mortgagor. While he holds under the mortgagor with the implied assent of the mortgagee, lie incurs no responsibility to the latter. But if the mortgagee has done nothing to impair his rights, at his option, at any time, he may call upon the tenant to yield up the mortgaged premises. The mortgagor, while in possession, is sub modo a tenant at will, and liable to be dispossessed without notice; and his lessee, in this respect, has no greater rights than the mortgagor under whom he holds. When therefore the lessee, after notice or on service of a declaration in ejectment, refuses to surrender the mortgaged premises, to the mortgagee, who has thus deter*650mined the will, from that time he becomes an actual trespasser. Until then his possession was not adverse, and therefore not within the rule in Liford’s case at all. But when he refuses to surrender the premises to the mortgagee, then his possession becomes adverse; he becomes an actual trespasser, the disseis- or, in the same manner as the sub-tenant who holds over after the determination of the tenancy: but in like manner he can only be answerable in trespass for the mesne profits after an actual entry by the plaintiff. Holding over against right, and taking the profits, he should answer therefor'; not by way of account, for it is well settled that he cannot be held liable in that mode, (Price v. Smith, 1 Goun. Ch. R. 517; 3 Atk. 244; 2 Ib. 107; 4 Kent 164;) but as a trespasser in an action for the mesne profits.
I apprehend then, that supposing the rule in Liford’s ease to be undisturbed, properly understood it does not stand in the way of the recovery in the present action. The lessee of the mortgagor is himself the disseisor; he holds under no prior disseisor, and does not come within the terms of the rule. It is a point of view, which when considered, perhaps rendered it unnecessary to discuss the soundness of the rule at all.
It only remains to add, that I hold the Chief Justice rightly charged the jury when he said : “ that the commencement of an action of ejectment is equivalent to an entry upon the land, for a right of entry is essential to the commencement of such an action ; and if the actual tenant resists such entry, and prevents the plaintiff from taking the rents and profits, he becomes a trespasser from that time, and ought to respond in damages for the rents and profits.” But I hold further, that for this purpose, not only a service of a declaration in ejectment is equivalent to an entry, but that notice to the tenant by the mortgagee and a demand of possession is equivalent to an entry ; and the tenant, if he hold over after such notice, will be an actual trespasser, and after actual entry responsible in damages. See Danforth v. Sergeant, 14 Mass. 491.
I am of the opinion that the judgment of the Supreme Court ought to be affirmed. Judgment reversed.
Cited in Shreve v. Miller, 5 Dutch. 252; Best v. Schermier, 2 Hal. Ch. 155.
Although clearly against the common law rule, and contrary to the rule previously held in this state, the Court of Errors decided, in a case between the present parties, (Sanderson v. Den. dem. Price, at May Term 1840,) that ejectment will not lie by the mortgagee against the mortgagor until after default made.