Peter Vivian Daniel

“ This question involves the much controverted and variously decided doctrine as to the responsibility of the mortgagee of leasehold property, pledged as security for a debt, but of which the mortgagee has never had possession, for the performance of all the covenants to the fulfilment whereof a regular assignee of the lease would be bound.
With regard to the law of England, as now settled, there seems to be no room for doubt that the assignee of a term although by way of mortgage or as a security for the payment of money, would be liable under all the covenants of the original lessee. ”

“ The language of his lordship in this case is exceedingly clear 'In leases,' said he, 'the lessee, being a party to the original contract, continues always liable notwithstanding any assignment; the assignee is only liable in respect of his possession of the thing. He bears the burden while he enjoys the benefit, and no longer; and if the whole is not passed, if a day only is reserved, he is not liable. To do justice, it is necessary to understand things as they really are, and construe in struments according to the intent of the parties. ”

“ The breach of the covenant and the cause of action must follow the qualify of the covenant. If that be joint the breach of it is joint; if it be several the breach of it is several.
The lessors were tenants in common of the premises in question. Tenants in common are joint but in one respect. The have neither the unity of time, nor of title, nor of interest; but only the unity of possession. They can join therefore in an action only when there has been an injury to their united possession ”

“ That the deed from Blackwell to the defendants, being a conveyance of a leasehold-interest in the nature of a trust for the security of a debt, by the terms of which conveyance the grantor was to remain in possession till default of payment, and the grantees not having entered into possession of the demised premises, which were entered upon and held by the plaintiffs themselves, the defendants could not be bound, under the covenant for repairs, to the premises never in their possession, and over which they exercised no control. ”

“ The converse as to both is asserted by the defendants, who contend as to the first, that the covenants for repairs declared on and of which profert is made, is essentially a joint contract, by and with all the covenantees, and could not be sued upon by them severally; and that the demurrer to the 3d and 4th pleas, reaching back to and affecting the first vice in the pleadings, shows upon the face of the declaration, and of the instrument set out in haec verba, a restriction upon the plaintiffs to a joint interest, or a joint cause of action only with all their associates in the lease. ”

“ If tenants in common make a lease to another, rendering to them a certain rent during the term, 'the tenants in common shall have an action of debt against the lessee, and not divers actions, for that the action is in the personalty. ”

“ Here is a special trust, ministerial in its character, (Lewin on Trusts, 21, 22,) in which the trustee holds the legal estate with a power to sell and convey for the benefit of the debtor and creditor. He takes no interest personally in the land. He has no right to the possession, except for the mere purposes of sale; he has no right to the rents, issues, profits, or other income from the land. In all this he differs from a mortgagee. ”

“ The doctrines upon the subjects of joint and several interests under a deed, and of the necessity or propriety for conformity with remedies for enforcing those interests to the nature of the interests themselves, have been maintained by a course of decision as unbroken and perspicuous, perhaps, as those upon which any other rule or principle can be shown to rest. ”

“ Bosanquet, and in which the latter case was considered and commented upon, the Supreme Court of New York, upon the principle that the mortgagor is the owner of the property mortgaged against all the world, subject only to the lien of the mortgagee, declare the law to be, 'that a mortgagee of a term not in possession, cannot be considered as an assignee, but if he takes possession of the mortgaged premises he has the estate, cum onere. ”

“ Hurd, 4 Pick. 253, ruling the doctrine that a mortgagee out of possession has no interest which can be sold under execution, but that the equity of redemption remaining in the mortgagor is real estate, which may be extended or sold for his debts; and farther, that the mortgagee derives no profit from the land until actual entry or other exertion of exclusive ownership, previous to which the mortgagor takes the rents and profts without liability to account, Mr. ”

“ Botfield, 14 M. & W. 574, Parke, B. delivering the opinion of the court, says: 'It becomes unnecessary to decide whether one of several tenants in common. lessors, could sue on a covenant with all to repair, as to which there is no decisive authority either way. That all could sue is perfectly clear;' and he cltes the cases referred to by Bacon and Archbold. See also, Simpson v. Clayton, per Tindal, C. J. 4 Bing. N. C. 781, and Wakefield v. Brown, Q. B. Trin. T. 1846, 7 Law Times, 450.
These two cases of Foley v. ”