a lease made by the inortgagor prior, and one made subsequent to the mortgage. In the latter case, it is admitted, that the mortgagee cannot distrain, or sue for the rent, because there is no privity of contract, or of estate, between the mortgagee and the tenant. But if the subsequent tenant attorns to the mortgagee after the mortgage has become forfeited, he then becomes his tenant, and is answerable to him for the rent. The statute of 11 Geo. II. c. 19. expressly admitted of the attornment to the tenant (and whether the tenancy existed before or after the date of the mortgage, has been held to make no difference) to the mortgagee after forfeiture, and this provision has been incorporated into the statute law of this country. It will depend, therefore, upon the act of the tenant, under a lease from the mortgagor subsequent to the mortgage, whether the mortgagee can sustain a suit or distress for the rent prior to his recovery in ejectment. In this state, I apprehend, the mortgagee can, in no case, without such attornment, have any remedy at law for the rent, for he is deprived of any action to recover the possession ; and if he gains the possession, it must be by contract with the mortgagor, or by one with the tenant subsequent to the forfeiture, or by the aid of a court of equity, and which aid would be afforded when the pernancy of the rents and profits becomes indispensable to the mortgagee's indemnity.

If the mortgagee obtains possession of the mortgaged pretrises before foreclosure, he will be accountable for the yftual receipts of rents and profits, and nothing more, Aunless they were reduced, or lost by his wilful default, or gross negligence. By taking possession, he imposes upon himself the duty of a provident owner, and he is bound to

a Jones v. Clark, 20 Johns. Rep. 51. Magill v. Hinsdale, 6 Connn Rep. 464.

6 N. Y. Revised Statutes, vol. i. 744. sec. 3. New Jersey Revised Lars, 192. sec. 17. 3 Halsted, 317.

Anon, 1 Vern. 44. 1 Eq. Cas. Abr. 328. pl. 1. Robertson v. Campbell, 2 Call, 428. Ballinger v. Worsley, 1 Bibb. 195:

recover what such an owner would, with reasonable diligence, have received.He may charge for the expenses of a bailiff or receiver, when it becomes proper to employ one, but he is not entitled to make any charge, by way of commission, for his own trouble in collecting and receiving the rents. This is the English rule, and the evident policy of it is to guard against abuse in cases where there might be a strong temptation to it; and the rule has been followed in New-York and Kentucky, while in Massachusetts a commission of five per cent. is allowed to the mortgagee for managing the estate. The mortgagee in possession is likewise allowed for necessary expenditures in keeping the estate in repair, and in defending the title ;d but there has been considerable diversity of opinion on the question, whether he was entitled to a charge for beneficial and permanent improvements. The clearing of uncultivated land, though an improvement, was not allowed in Moore v. Cable, on account of the increasing difficulties it would throw in the way of the ability of the debtor to redeem. But lasting improvements in building have been allowed in England under peculiar circumstances, and they have been sometimes allowed, and sometimes disallowed, in this country. The mortgagee in possession holds the estate

a Williams v. Price, 1 Sim. f Stu. 581. 3 Powell on Mortgages, 949. a. note. Hughes v. Williams, 12 Vesey, 493

6 Bonethon v. Hockmore, 1 Vern. 316. French v. Baron, 2 Atka 120. Godfrey v. Watson, 3 ibid. 517. Langstaffe v. Fenwick, 10 Vesey, 405. Davis v. Dendy, 3 Madd. Ch. Rep. 95.

c Moore v. Cable, 1 Johns. Ch. Rep. 385. Breckenridge v. Brooks, 2 Marshall, 339. Gibson v. Crehore, 5 Pick. 146.

d Godfrey v. Watson, 3 Atk. 517. Lord Alvanley, in 4 Vesey, 480. Moore v. Cable, 1 Johns. Ch. Rep. 385. Saunders v. Frost, 5 Pick. 259.

e Exton v. Greaves, 1 Vern. 138. Talbot v. Braddill, ibid. 183. note.

f In Conway v. Alexander, 7 Cranch, 218. the Circuit Court for the District of Columbia, directed an allowance for permanent improvements; and though the decree was reversed on appeal, that point

strictly as a trustee, with the duties and obligations of a trustee, and if he takes the renewal of a lease, it is for the benefit of the estate, and not for his own benefit. He can make no gain or profit out of the estate which he holds merely for his indemnity: a

The mortgagee's right depends very essentially upon the registry of his mortgage, and upon the priority of that registry. The policy of this country has been in favour of the certainty and security, as well as convenience of a registry, both as to deeds and mortgages ; and by the statute law of New York, every conveyance of real estate, whether absolutely, or by way of mortgage, must be recorded in the clerk's office of the county in which the real estate is situated, after being duly proved or acknowledged, and certified as the law prescribes. If not recorded, it is void as against any subsequent purchaser, or mortgagee, in good faith, and for a valuable consideration, of the same estate, or any portion thereof, whose conveyance shall be first duly recorded. It may be said. ganerally that this is the substance of the statute law on the subject in every state of the union; but in some of them the recording is still more severely enforced, and deeds are declared void, at least as to all third persons, unless recorded. If the ques

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was not questioned. So, in Ford v. Philpot, 5 Harr. & Johns. 312. a similar allowance was made in chancery, and that point was untouched in the Court of Appeals. In Russell v. Blake, 2 Pick. 505. it was said, that the mortgagee could not be allowed for making any thing new, but only for keeping the premises in repair. All the cases agree, that the mortgagee is to be allowed the expense of necessary repairs, and beyond that the rule is not inflexible, but it is subject to the discretion of the court, regulated by the justice and equity arising out of the circumstances of each particular case.

a Holdridge v. Gillespie, 2 Johns. Ch. Rep. 30.

b N. Y. Revised Statutes, vol. i. 756. sec. 1. ibid. 762. sec. 37. The term purchaser, in the statute, is declared to embrace every mortgagee, and his assignee.

c In Pennsylvania, no deed or mortgage is good unless recorded in six, and in Delaware, no mortgage is good unless recorded in twelve months ; and in Massachusetts, Rhode Island, Connecticut,

Vol. IV.


tion of right between a mortgagee, and a subsequent mortgagee or purchaser of the same estate, depended entirely upon the existence and priority of the registry, it would turn upon a simple matter of fact of the easiest solution, and it would undoubtedly remove much opportunity for litigation, The French ordinance of 1747, allowed to creditors and purchasers, having notice of a deed containing a substitution of an estate prior to their contract or purchase of the same, to object to the want of registry of the deed according to the requisition of the ordinance. The ordinance was framed by an illustrious magistrate, the Chancellor D'Aguesseau, and the commentators upon it laid it down as a fixed principle, that not even the most actual and direct notice would countervail the want of registration ; so that, if a person was a witness, or even a party, to the deed of substitution, still, if it was not registered, he might safely purchase the property substituted, or lend money upon a mortgage of it. The policy of so rigorous a rule, was to establish a clear and certain standard of decision for the case, which would be incapable of vibration, and prevent the evils of litigation, uncertainty, and fraud. But Pothier questions the wisdom of the rule, inasmuch as actual notice supplies the want, and the object of the registry. The principle or the ordinance has, however, been continued, and applied to some special cases in the Napoleon code. A more reasonable doctrine prevails in.

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uud some other states, the deed does not operate until recorded, except as between the parties and their heirs. In Ohio, deeds must be recorded in six months, and an unrecorded deed is void against a subscquent purchaser for valuable consideration, without notice of the deed, whether the subsequent deed be, or be not recorded.

a Com. de l'Ord. de Louis XV. sur les Substitutions, par M. Furgole, cited by Mr. Butler, note 249. sec. 11. to lib. 3. Co. Litt. Pothier. Traité des Subslitutions, art. 4. sec. 6.

1 Code Civil, No. 1071. Le Défaut de transcription ne pourraê tre suppléé ni regardé, comme couvert par la connaissance que les creanciers (re les tiers acquereurs pourraient avoir eue de la disposition par d'autres Toies que celle de la transcription. This regulation is almost in the

the English and American law, and it is a settled rule, that If a subsequent purchaser or mortgagee, whose deed is reIgistered, had notice, at the time of making his contract, of the prior unregistered deed, he shall not avail himself of the priority of his registry to defeat it, and the prior unregistered deed is the same to him as if it had been registered. His purchase is justly considered, in cases where the conduct of the first mortgagee has been fair, as made in bad faith, and it would ill comport with the honour of the law, and the wisdom of the administration of justice, that courts should blind their eyes to such fraudulent dealing, and suffer it to remain triumphant. If the second purchaser has, in fact, notice, the intent of the registryts answered, and to permit him to hold against the first purchaser, would be to convert the statute into an engine of fraud. And by analogy to the case of the registry acts, it is settled in England, upon great consideration, that a purchaser is also bound toy notice of a judgment, though it be not docketted. The effect of notice equally supplies the want of the register in the one instance, and of the docket in the other ; though Lord Eldon seems to doubt whether the rule be perfectly reconcilable to principle. Lord Hardwicke, in the great case of Le Neve v. Le Neve, in which the existence and solidity of the English rule are shown and vindicated in a masterly manner, states the case of a purchaser of land in a register county, employing an attorney to register his conveyance, who neglects to do it, and buys tho estate himself, and registers his own conveyance, and he ihen significantly asks, shall this be allowed to prevail ? A court of equity must have its moral sense " wrapt up in triple brass,” to be able to withstand such an appeal to its ustice. The French code does not carry throughout the

very words of the ordinance respecting French entails promulgated under the auspices of Chancellor D'Aguesseau. Euvres DAgursseau, t. 12. p. 476. oct. ed.

a Davis v. The Earl of Strathmore, 16 V csey, 419. 63 Atk. 646. 1 Ves, 64. Amb. 436. S. C.

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