
    Jones against Clark and Stewart.
    A tenant of a mortgator in position, after the mortgage has become forfeited, during the continuance of the lease from the mortgagor, may attorn to, and take a lease from the mortgagee ; and in an action brought against him by the mortgagor, for rent under his lease, he may set up such attornment as a legal defence.
    One of two lessees, after the lease has expired, is a competent witness to show that he had no beneficial interest in the lease, but joined in the execution of it,' merely as a surety for the payment of the rent by the co-lessee.
    IN ERROR, to the Court of Common Pleas, or Mayor’s Court of Albany.
    
    The defendants in error brought an action of assumpsit 
      against the plaintiff in error, in the Court below, to recover one quarter’s. rent of a house and lot, formei’ly owned by Gilbert Stewart, due August 1, 1821. The defendant pleaded the general issue. At the trial, the plaintiffs gave in evidence a written lease of the premise?, from them to the defendant and Maltby Hotoel, for one year, ending May 1, 1821, for the rent of 400 dollars, payable quarterly.
    
      M. Howel, a witness for the plaintiff, testified, that the defendant took possession of the premises, under the said lease, at its commencement, on the first of May, 1820, and has since continued in occupation thereof. The witness, in answer to a question, which was objected to by the defendant’s counsel, but allowed by the Court, and the point reserved, said, that he joined in the execution of the lease-merely as surety for the payment of the rent by the defendant, Jones, and had never occupied the premises. It was proved that, at the expiration of the term, Jones, without the intervention or concurrence of Howel, agreed with Ciarle, one of the plaintiffs below, to take the premises for another year, at the same rent.
    The defendant below gave in evidence a bond of Gilbert Stewart, to R. Pratt and W. Durant, for 6000 dollars, payable on the 4th of February, 1821, and a mortgage to them of the premises, dated February 4, 1819, duly recorded; and, also, a lease from Pratt and Durant, to the defendant, of the premises in question, dated February 7, 1821, for one year, commencing May 1, 1821, at the yearly rent of 400 dollars ; which lease contained a clause, by which the lessors engaged to indemnify the defendant against all claims for rent, by any other persons; and also, a general assignment by Gilbert Stewart, of all his property, including the premises in question, to the plaintiffs below, dated August, 1819, in trust, for the benefit of his creditors, as specified in the assignment.
    A verdict was taken by consent, for the plaintiffs below, for one quarter’s rent, subject to the opinion of the Court, &c., on which a judgment was, afterwards, rendered by the Court below.
    
      II. Bleecker, for the plaintiff in error,
    1. There Was not sufficient evidence, in the Court below, that the defendant held under the plaintiffs. .
    
      2. The testimony of Howel was inadmissible.
    3. The important question is as to the effect of the mortgage. The lease was made subsequent to the mortgage; and according to the decision of the Court, in M‘Kircher v. Hawley, (16 Johns. Rep. 289.) there was no privity between the defendant and the mortgagees, so that they could distrain for rent; but it will be said, that the lease by the assignees of S., the mortgagor, was void as to the mortgagees; (Birch v. Wright, 1 Term Rep. 380.) that they, having the legal estate in them, and, therefore, a right to the possession, could eject the tenant. Now, why should not the tenant of a mortgagor, liable to be put out of possession at any time, be at liberty to receive a lease from the mortgagee, having a right to the possession ? If he submits to be ejected, he loses the enjoyment of the premises, and the mortgagor gains nothing, for he cannot compel the tenant to pay rent after he has been ejected. The mortgagees are entitled to the rents and profits of the mortgaged premises, and may apply the same towards the payment of the debt. This is for the benefit of both parties. The right claimed by the mortgagees is founded in justice and convenience.
    Then, as to the law of attornment, which has a strong bearing on the question. The law is fully stated by Mr. Butler, in his note to Co. Litt. 309. a. Attornment was for the benefit of the tenant. He was not to be transferred to a new lord without his consent. The necessity of attornment was, in some measure, avoided by the statute of uses, and the statute of wills ; and its necessity and efficacy were almost wholly taken away by the stat. of 4 & 5 Anne, c. 16., and 11 Geo. II. c. 19. The former (see 1 N. R. R. 525. sess. 36. ch. 56. s. 25.) makes all grants and conveyances valid, without the attornment of the tenants; and the latter, (see 1 N. R. L. 443. sess. 36. ch. 63. s. 27, 28.) after reciting that landlords are turned out of the possession of their estates by the attornments of tenants to strangers, who claim titles to the estates, &c. declares, that all such attornments shall be absolutely null and void, and that they shall not affect the possession of the landlords ; and it pro
      
      vides, among other things, that the act shall not extend to affect any attornment made to any mortgagee, after the mortgage has become forfeited. After forfeiture, the mortgagee is not only entitled to possession, but has an absolute estate at law. The statute supposes that the possession could be changed by attornment to a stranger claiming title; and to prevent such a change, it makes the attornment void, except in the cases mentioned in the proviso, in which it permits the possession to be changed, and, consequently, makes the attornment of the tenant, in such case, equivalent to a recovery of the possession by suit at law. This statute, then, provides for the very case in question. It must embrace, also, the case of a lease made subsequent to the mortgage. It does' not embrace the case of a tenant prior to the mortgage ; because it was unnecessary to provide for such case, as by the statute of 4 & 5 Anne, such prior tenant became the tenant of a subsequent mortgagee.
    It cannot be supposed that the British parliament, or our legislature, when these statutes were passed, concerning attornments to strangers, were entirely wrong in supposing that such attornments changed the possession. For, if such an attornment did not effect a change of possession, the acts passed on the subject were nugatory. “ The tenant has no right to the reversion, and, therefore, cannot alter the disposition of it one way or the other; but he has a right to the possession, and, therefore, can put whom he pleases into the possession of what he has in him.” (Gilb. Tenures, 82. 3 Bin. Abr. tit. Attornment, p. 317.) So, that it appears that the tenant could change the possession in the manner contemplated by the statute.
    Whatever doubts may be entertained concerning the proviso in the statute of Anne, they cannot make the proviso in the statute of George H. nugatory; and if the enacting clause of the latter statute is not itself perfectly nugatory, the proviso is very important. It is not correct, then, to say, that these statutes have made attornments both, unnecessary and inoperative, since the statute of George II. allows them to operate in the cases mentioned in the proviso. (Per Butter, J. 1 Term Rep. 384.) Nothing is better settled, than that all leases, or other interest in the land, made or conveyed by the mortgagor subsequent to the mortgage, though before forfeiture, are void as against the mortgagee. (1 Powell on Mort. 226. 1 Term Rep. 383.) As to him, the tenants under such leases, or persons claiming such interests, may be considered as trespassers. Now, if such tenant is a trespasser as to the mortgagee, it must follow, that the tenant can agree to become the tenant of the mortgagee ; and then a privity exists between them, and the-tenant becomes liable to a suit or a distress by the mortgagee for the rent. The statute of George II., by allowing an attornment in.such case to be valid, made it, of course, valid and lawful as against the mortgagor, and those claiming under him; and it was unnecessary to allow such attornment to be good against any other person. It will, perhaps, be said, that a Court of equity will not permit the mortgagee to make leases to the prejudice of the mortgagor’s right to redeem. (1 Powell on Mort. 247.) But that is a rule peculiar to that Court, with which wé have no concern here. It was intended to protect the right of redemption, which can be exercised in that Court only.
    
      Louclcs, contra.
    The question in this case is, whether a tenant of a mortgagor in possession, who became such subsequent to the giving of the mortgage, can, in a suit by his landlord for rent, set up, as a legal defence, that after the mortgage became forfeited, he agreed with the mortgagee to pay rent to him, notwithstanding his lease from the mortgagor had not expired? This question turns, in a great measure, on the true meaning and import of the term attornment. It is defined to be the tenant’s consent to his landlord’s granting the estate to another person, whose tenant he agrees to be thenceforth, by force of the grant; (Litt. b. 3. c. 10. sec. 551. Co. Litt. 309. a. 2 Bl. Com. 292.) and without such consent actually given during the life of the grantor, the grant, at common law, is void and inoperative. This rule, though, in some instances, done away by the statute of Uses, (1 Term Rep. 384.) continued until the statute of Anne. (1 N. R. L. 525.) By force of this statute, a grantor of lands on which he has a tenant, by making the grant, transfers the tenant to the grantee; and thus, by operation of law, a privity is instantly created between the tenant and the grantee, (1 Term Rep. 384.) whose tenant he thus becomes, instead of his former landlord ; and he cannot be turned out of possession until his lease has expired. It was, therefore, rightly decided, in Moss v.Gallimore, (Doug. 279. 283.) that the grantee might, in such case, distrain for rent, having the legal title to it.
    But the case of a tenant who takes his lease from the mortgagor in possession, subsequent to the mortgage, is very different. In such case the grant is made before he becomes a tenant, and, of course, his consent or attornment could not be necessary to give validity to the grant. It follows, that the statute of Anne has no operation in such a case, since it merely supplies attornment where it was required, at common law, to give effect to a grant made pending a tenancy.
    
    It is clear, that a tenant of a mortgagor, becoming such subsequent to a mortgage, is not transferred to the mortgagee by the act of making the mortgage, and the statute of Anne. He is, therefore, a mere stranger to the mortgagee, and a trespasser; (Woodfall’s Ten. & Land. 110.) and may be ejected after the mortgage is forfeited, without notice to quit. (Doug. 21. 4 Johns. Rep. 215.) And since there is no privity between the mortgagee and such tenant, he cannot be distrained upon, or sued, for rent, by the mortgagee. (M‘Kircher v. Hawley, 16 Johns. Rep. 289.) But it is said, that Jones, in this case, has attorned, by taking a lease from the mortgagees, and thereby created a,privity. This is begging the question: for, as has already been shown, attornment has no application to a person in his situation. That such a tenant cannot attorn, or, by any act of his, create a privity, to the prejudice of his landlord, is decided in M'Kircher v. Hawley; for as attornments might be made by parol, or implied.from circumstances, or the acts of the tenant, the setting up in his plea a distress of his goods by the mortgagee, must have been considered as an attornment to the mortgagee, or on no other principle could he claim to be exempt from paying rent to his lessor; yet the Court overruled the plea, on demurrer, for want of a privity between the tenant and mortgagee. The proviso in the statute of George II. (1 N. R. L. 443.) exempting certain attornments from the operation of the statute, did not create any new species of attornment, or introduce them where they could not have been before lawfully made. It merely saves such as already existed. The proviso was added, ex abundanti cautela ; and was, in truth, wholly unnecessary. It is entirely nugatory, as it saves nothing which would not have existed without it. It is not unusual to put such provisos in statutes. There is one of similar character in the statute of Anne, (1 N. R. L. 525.) which, as Mr. Justice Buller observes, (1 Term Rep. 385.) saves no other or greater rights than would have existed without it. And since the statute of Anne has rendered attornments unnecessary in all cases in which they were required at common law, or could be lawfully made, (Doug. 279. 1 Term Rep. 388.) and which statute extends to mortgages, (1 Term Rep. 384.) it is very correctly said by Butler, in his note to Co. Litt. 309. a., that these statutes have made attornments both unnecessary and inoperative ; unnecessary, if not made where the common law required them ; • aiid inoperative, if made where they were not required.
    
    A mortgagor in possession does not stand in the relation of a tenant to the mortgagee; (1 Term Rep. 382. Doug. 279.) and his lessee must be in the same situation. Hence it is, that a lease by the mortgagor is void as against the mortgagee; or, in other words, he can make no lease to bind the mortgagee. The mortgagee may, however, affirm the lease; but that does not make him landlord; but merely sanctions the relation between the mortgagor and his tenant, so that he cannot, in such case, eject the tenant, until the lease has expired. And in this sense are the expressions met with in the books to be understood, that a mortgagee may treat such lessee as a trespasser. (Bac. Ab. tit. Mortg. C. 16 Johns. Rep. 291.) An election by the mortgagee not to consider the tenant a trespasser, does not make him his tenant. If the tenant agrees with the mortgagee to be. his tenant, that is taking a neto lease ; it is not a transfer or Continuation of the old one, as it would be in the case of a lease anterior to the mortgage. It is settled, that before foreclosure, the mortgagee cannot lease the premises so as to bind the mortgagor. (1 Powell on Mortg. 247, 248. Woodfall, 111. 9 Mod. 1.) The case which this was first established, it is true, came from the Court of Chancery; but the relative rights and obligations between mortgagor and mortgagee, are now the same at law as in equity ; and reason requires that it should be so. (1 Caines’ Cas. in Error, 69. Hitchcock v. Harrington, 6 Johns. Rep. 290.) The rule is reciprocal: as the mortgagor cannot lease so as to bind the mortgagee, so the latter cannot lease, to bind the former. Besides, before foreclosure, the mortgagee has no legal interest, as regards third persons, in the mortgaged premises. (Jackson v. Willard, 4 Johns. Rep. 41.) How, then, can he grant any interest to a tenant ?
    Again; if the mortgagee could thus get into possession, without being put to his suit, the mortgagor might be deprived of his defence as to the validity of the mortgage. (Jackson, ex dem. Sternbergh, v. Dominick, 14 Johns. Rep. 435.) The editor of Bacon’s Abr. (tit. Mortgage, C. Gwillim’s ed. by Wilson,) says, “ If a mortgagee permits the lessee (who became such subsequent to the mortgage) to enjoy his lease, the mortgagor may thenceforth be considered as a receiver of the rent, or, in some sort, a trustee, for the mortgagee, who may, at any time, countermand the implied authority, by giving notice to the tenant not to pay rent to the mortgagor any longer.” For this he cites 6 Atk. 601; but this note does not evince the usual accuracy and discrimination of the learned editor. The authority cited contains no such doctrine. The mortgagor is not a receiver of the rent for the mortgagee, for, if he were, he would be bound to pay over the whole. (1 Term Rep. 383.) He receives the rent to his own use, and is only bound to pay the mortgage money : and in regard to notice to the tenant, not to pay any more rent to the mortgagor, this has reference only to the case of a tenant anterior to the mortgage, (Ketch v. Hall, Doug. 21.) for he is transferred, by the giving of the mortgage, and by the consent of all parties. The mortgagee can, in effect, countermand the receipt of the rent by the mortgagor, only by ejecting the tenant, or by a bill in equity, (Doug. 21. 4 John’s Rep. 216.) not by considering himself in the light of a landlord.
    
    The defendant below, (Jones,) then, being, under no obligation, by reason of any act of the plaintiffs below, to pay rent to the mortgagees, his obligation to pay it to the plaintiffs below continues until he is ejected under the mortgage. (Cowp. 242.) He cannot exonerate himself from this obligation, without the consent of his landlord; and the rule that a tenant, in an action against him for rent, cannot dispute the title of his landlord, applies in full force. (13 Johns. Rep. 240. 297. 489. Peake’s Ev. 242. 244.) On the other hand, in the case of a tenant of the mortgagor, who became such prior to the mortgage, he may pay the rent to the mortgagee, on mere notice from him, without a breach of his obligation to his former landlord, who, by the act of making the mortgage, transfers the tenancy, and the legal rights incident to it, to the mortgagee; and this is the " attornment to a mortgagee,” which is saved by the proviso in the statute of Geo. II. The taking a lease by Jones from the mortgagees was, therefore, an act of disloyalty, in derogation of the rights of the plaintiffs below, and fraudulent, as against them.
    
      Bleecker, in reply.
    It is said, that the mortgagee, before a foreclosure, has no legal interest in the premises ; but the case cited, (6 Johns. Rep. 290.) shows that the mortgagor has the legal interest, as to all others, • except the mortgagee and his representatives. It is idle to say, that the mortgagee has not the legal interest, when it is admitted that he may, at any time, obtain possession by an action of ejectment.
    Again; it is said, that the mortgagee can, in effect, countermand the payment of further rent to the mortgagor, by ejecting the tenant. Now, the agreement of the tenant to become the tenant of the mortgagee, accomplishes all that could be done by an ejectment, against which the tenant cannot defend himself. He does not prejudice the rights of others, by preferring to become a tenant to the mortgagee, rather than be turned out of possession, by an action of ejectment. As against the mortgagee, the mortgagor has no right to the premises, or to the rent. This is not the ordinary case of a tenant disputing his landlord’s title. The title of the mortgagee is not hostile to that of the mortgagor. It is the same title. The landlord has created an incumbrance on the premises, and has thereby subjected the tenant to an ejectment, which the statute of Geo. II. (1 N. R. L. 443.) allows the tenant to avoid, by becoming the tenant of the mortgagee. This results from the act of the mortgagor, not from the mere volition of the tenant. The statute allows the tenant to change his situation, not in hostility to the rights of the mortgagor, but in accordance with them, and to attain the objects and purposes of the incumbrance. The tenant does not deny the title of the mortgagor ; if he had no title, the mortgage itself would be invalid, and give no title to the mortgagees. “ The mortgagor and mortgagee have but one'title between them.” (Per Buller, J. 1 Term Rep. 383.) “ The defendant may show that the plaintiff had only a temporary interest at the time of the demise, which has since expired; or that he has mortgaged the estate to another person, who has given the defendant notice to pay the rent to him.” (Peake’s Ev. 245.) Here the mortgagor had a right of possession, determinable by the will of the mortgagee. It was, in this sense, a temporary interest. If) instead of taking a lease from the mortgagees, the tenant had submitted to an action of ejectment, and after judgment, and before execution of the writ of possession, he had agreed to receive a lease from the mortgagees, would not this have afforded him a defence against a suit by the mortgagor for rent ? And where, in reason and good sense, is the difference between the case supposed and the one now before the Court ?
    
      
       See also, Gilb. Law of Tenures, 4th Ed. p. 81, notes by the Editors.
    
   Spencer, Ch. J.,

delivered the opinion of the Court. The points made by the comisel for the plaintiff in error, are, 1. That there was no sufficient evidence that Jones held under Clark and Stewart.

2. That Bowel was an incompetent witness.

3. That the matters shown by the defendant below, were a complete defence.

The first and second points may, at once, be disposed of. There was complete evidence of the hiring of the premises, by Jones, for the second year. Howel was a competent witness to show that he had no beneficial interest in the expired lease, though the fact itself was no wise material. The cause depends on the third point; and it presents this question, whether a tenant of the mortgagor in possession, and who became such subsequent to the giving the mortgage, can, in a suit by his landlord, the mortgagor, set up as a legal defence, that after the mortgage became forfeited, he attorned to the mortgagee, and took a lease from him, during the continuance of the lease from the mortgagor P This case has probably been decided in the Court below, on the authority of the case of M‘Kircher v. Hawley, (16 Johns. Rep. 289.) The principle decided in that case was this: that a mortgagee could not distrain for rent becoming due under a lease made by the mortgagor subsequent to giving the mortgage, because there was no privity of estate or contract between the mortgagee and such a tenant; and we held, that to enable a party to distrain for rent, he must have a concurrent right to maintain an action for the rent: and if there was no privity of contract or estate, an action could not be maintained.

When the plaintiff in error attorned to the mortgagees, and took a lease from them, their title to enter under their mortgage was complete; for the day of payment having passed, the condition was broken, and the estate of the mortgagees was absolute at law. This case, then, presents a very different question from the one decided in M‘Kircher v. Hawley. There, the point was, whether the mortgagee could distrain, or, in effect, sue for the rent. Here, it is, whether the tenant of the mortgagor could not, by his own act and consent, become the future tenant of the mortgagees, without any disloyalty to the mortgagor. “ At common law,” says Mr. Butler, (in note 272 to Co. Lit. 309. a.) “ attornment signified only the consent of the tenant to the grant of the seigni ry; or, in other words, his consent to become the tenant of the new lord.” He goes on to show the operation of the statute of quia emptores, and the statute of uses, and the statute of wills; and - observes, that the necessity and efficacy of attornments have been almost totally taken away by the statutes of 4 and 5 Anne, c, 16., and 11 George II. c. 19. These two statutes have been tQenacted here. The former does not relate to this case, but the latter has an important and decisive bearing upon it. The 28th section of the statute concerning distresses, rents, and the renewal of leases, (1 N. R. L. 443.) after reciting that the possession of estates is rendered precarious by the frequent and fraudulent practice of tenants attorning to strangers, by which means landlords and lessors are turned out of possession, and put to the difficulty and expense of recovering possession by suits at law, enacts, that every such attornment shall be null and void, and the possession of the landlords or lessors shall not be deemed to be, in any wise, changed by any such attornment •, with a proviso, that' nothing therein contained should extend to vacate or affect any attornment made pursuant to and in consequence of any judgment at law, or decree or order of a Court of equity, or made with the privity and consent of,the landlord or lessor, or to any mortgagee, after the mortgage is become forfeited.

The mischief which the statute was intended to remedy, was the attornment by tenants to strangers claiming title and without the proviso, the construction of the enacting part of the statute would have admitted of no doubt. But to remove every doubt, the legislature have declared who were not strangers, and to whom the tenant might lawfully attorn; he may attorn to a mortgagee after the mortgage is forfeited. The reason of this is obvious. The mortgagee, as between him and the mortgagor, has the right of entry, and is entitled to the possession of the premises. If, then, the tenant will do voluntarily what the law will coerce him to do, yield up the possession to the mortgagee, it is not an act injurious to the just rights of the mortgagor, nor disloyal towards him. Indeed, the rights of the tenant also require that he should be allowed to do so; for if he refuses to attorn, he at once subjects himself to eviction, and the payment of costs. The statute makes no difference between a tenant to the mortgagor, who becomes so before or after the execution of the mortgage. It applies to every tenant of the mortgagor, without reference to the time when he became tenant. The reason is the same in both cases, and they are both embraced by the proviso of the statutes; and neither of them are within the mischiefs intended by the enacting part of the statute.

Judgment reversed, and a venire de novo to be awarded in the Court below.  