is reported to have said, that a mortgagee in possession was not in the situation of tenant at all; or at all events, he was not more than tenant at sufferance, and that in a particular character, liable to be treated as tenant or trespasser, at the option of the mortgagor. But in a prior case (d), the Court of King's Bench appeared clear in opinion that the mortgagor might be considered as tenant in the strictest definition of that word, for the purpose of enabling the mortgagee to maintain an action against a trespasser.

In Moss v. Gallimore (e), in which the estate was in the hands of tenants, the mortgagor was considered as a receiver for the mortgagee; but Lord Eldon (ƒ) expressed his surprise at this doctrine, and said it was a misapplication of the principles of equity. In the earlier case of Birch v. Wright (g), Mr. Justice Buller considered it sufficient to designate the parties as mortgagor and mortgagee, without having recourse to any other description; and he considered a mortgagor was neither a tenant at will nor receiver, nor was it necessary he should be so, for a mortgagor and mortgagee were characters as well known and their rights, powers, and interests as well settled as any in the law. But this view of the question does not meet the difficulty, for the rights, powers, and interests of mortgagor and mortgagee, are in many instances grounded on their respective

(d) Partridge v. Bere, 5 Barnewall & Ald. 604.

(e) Douglas, 283.

(f) See Ex parte Wilson, 2 Vesey & Beames, 252. (g) Term Rep. 383.

estates in the land; and therefore, we are still driven back to the original question, what are those estates? The common law recognizes no such estate as that of mortgagor or mortgagee independently of some other known estate or interest in the land; for the estates both of mortgagor and mortgagee are of a compound nature, partaking partly of legal and partly of equitable rights; and it is difficult to perceive in what manner these compound estates can, as such, be regarded in a court of law, although the possession of the mortgagor may, as noticed in the next chapter, confer on him certain privileges under the statute law and poor laws. In addition to which it may under circumstances become essential to ascertain, whether at common law there is any, and what privity of estate between the parties; for if the mortgagor in possession may be considered as tenant at will, or, under the agreement for possession, as tenant for years, to the mortgagee, there will be sufficient privity of estate between them to admit of an enlargement by release alone, which will not be the case, if he is to be considered as tenant at sufferance, or an agent or receiver. So long as the mortgagor is in possession of the land, and the legal ownership is in the mortgagee, there must subsist a tenancy of some sort between the parties (h); or otherwise the mortgagor must be a trespasser, for the law of England recognizes no possession independent of a tenancy, either to the lord paramount or a mesne lord. The

(h) Partridge v. Bere, 5 Barnewall & Alderson, 664. But see and consider what is said by Lord Tenterden in Doe v. Maisey, supra.

mortgagor in possession must hold of some one, and to say that his possession is that of a mortgagor, is in fact leaving the question undecided.

If in the mortgage deed there is the usual proviso for the enjoyment of the land by the mortgagor, until default in payment &c., and the mortgagor is in actual possession, he must, it is thought, during the continuance of that agreement, be considered as tenant to the mortgagee, holding for a term (i).

If in the case of such agreement the money is not paid at the appointed time, and the mortgagor continues in possession after the determination of the agreement, without any fresh agreement between the parties, or if the mortgage deed contains no such agreement, he may be considered as tenant at sufferance, or treated as a trespasser (k), although the mortgagee has been in the receipt of interest on the mortgage debt; and in every case, except where there is an actual agreement for the occupation by the said mortgagor until a certain period, the conti

(i) Powseley v. Blackman, Cro. Jac. 659. In a note to the case of Doe v. Maisey, 3 Manning & Ryland, 109, it is considered that the case of Powseley v. Blackman does not bear out the above proposition. But, on perusing the case it will be seen, it was admitted that if the proviso had been in the form in the text, it would have amounted to a demise for a term. In the note it is ingeniously suggested that a mortgagor may be considered as tenant in fee determinable, as in the case of a shifting use under a marriage settlement, but this would be repugnant to the use already limited to the mortgagee in fee.

(k) Doe v. Maisey, supra.

nuance of the mortgagor in possession, if with the consent of the mortgagee, must be construed strictly as a tenancy at will().

If the mortgage is transferred to another (m), the mortgagor becomes tenant by sufferance to the assignee.

Although the mortgagor is equitable owner, yet the mortgagee is more than a trustee for him, for a trustee is not allowed to deprive his cestui que trust of his possession, but a mortgagee may assume the possession whenever he pleases (n), if there is no agreement to the contrary, and in point of possession, the mortgagor is tenant at will even in equity, for a Court of Equity never interferes to prevent the mortgagee from assuming the possession (o).

(1) Keech v. Hall, 1 Dougl. 22.

(m) Smartle v. Williams, 3 Lev. 387, and 1 Salk. 245; Thunder v. Belcher, 3 East, 449.

(n) Doe v. Maisey, supra.

(0) Per Master of the Rolls in Cholmondeley v. Clinton, 2 Merivale, 359.

CHAPTER II.

OF THE PRIVILEGES ATTENDING THE ESTATE OF THE MORTGAGOR.

WITH Whatever strictness the common law may have originally regarded the breach of the condition by the mortgagor, yet in modern times, the doctrine of the courts of equity, recognizing the mortgagor (until foreclosure) to be the actual owner of the land, has to a certain extent, with reference to the possession by the mortgagor, been acted upon, as well by the courts of common law, as by the legislature.

The statute law (a) has provided, that the mortgagor in possession shall have the privilege of voting for the return of members to parliament notwithstanding the mortgage.

At common law his title of ownership while in possession is so far recognized as to gain him a settlement under the poor laws (b), but for this purpose he must reside within ten miles of the property (c), and be in possession in his capacity of mortgagor, and not by fraud or wrong; and in a case (d), in

(a) 7 & 8 Will. 3, c. 25, s. 7 ; 2 & 3 Will. 4, c. 45, s. 23. (b) Dougl. 932; 3 Term Rep. 771.

(c) 4 & 5 Will. 4, c. 76, s. 68, a.

(d) Rex v. The Inhabitants of Catherington, 3 Term Rep. 771.