McDevitt v. Sullivan

Burnett, J., delivered the opinion of the Court—Field, J., concurring. 1. The premises being mortgaged at the date of the lease from Davis to Sullivan, in December, 1854, Sullivan took the lease, subject to the mortgage. When the mortgage was foreclosed, and the premises sold to Abel Guy, the mortgaged estate of Davis and wife passed to Guy. From the time that the estate vested in Guy, he acquired the right to demand of Sullivan, either the possession of the estate purchased under the mortgage-sale, or a proportionate part of the rent. In a suit by Mc-Devitt against Sullivan, the latter had the right to show that a part of the interest of Davis had passed, and that his estate thus far had ceased. So far as McDevitt claimed as the successor [596]of Davis, he was only entitled to the rents that Davis would have claimed at the time of the purchase and assignment by Sullivan. Previous to that purchase, the interest mortgaged by Davis and wife had passed to Guy, leaving in Davis only that portion not covered by the mortgage. Although, as a general rule, a tenant cannot dispute his landlord’s title, he may show that it has terminated. Chitty on Contracts, p. 296-7.

2. But it is insisted, by the learned counsel for the plaintiff, that Sullivan entered into a lease of the premises with McDevitt and paid him rent; and that Sullivan is, therefore, estopped from denying his landlord’s title. This ground does not seem to be tenable under the peculiar circumstances of this case. Sullivan did not obtain possession under McDevitt, and he is not estopped from showing that the attornment to McDevitt was made under a mistake of fact. The lease made by Sullivan with McDevitt, and the payment of rent, constitute only prima fade evidence of title in McDevitt. The proof being only prima facie, was fully overcome by the facts established in evidence. There can be no doubt of the fact that Sullivan purchased the premises for the benefit of McDevitt, and the assignment of the certificate of the sheriff, was simply to carry out. the understanding between them. It was, therefore, a mistake on the part of Sullivan in agreeing to pay to McDevitt the entire rent, including the portion that rightfully belonged to Abel Guy. Chitty on Contracts, 296-8; 15 E. C. L., 234; Taun., 201; 11 Ver., 323 ; 1 Bing., 390.

So far, then, as to the individual interest covered by the mortgage, Sullivan had the right to show that he owed the rent to another, and not to McDevitt.

3. But as to that portion of the interest not covered by the mortgage, the case presents a very different question. It is true, that under the authorities before cited, the execution of the assignment, and the payment of the rent, would not estop Sullivan from disputing the title of McDevitt. But how far will this right permit Sullivan to go ? Under this privilege, can he show, contrary to his lease to Davis, that Davis never had any title ? And if he could not be permitted to show this, as against Davis, (had Davis, instead of McDevitt, brought this suit before the partition,) could he be permitted to show it as against McDevitt, the regular successor in interest of Davis ? McDevitt claims the rent, not only in virtue of the lease, but in virtue of the purchase. He claims upon two distinct grounds. By taking the lease from Davis, and entering into possession under him, Sullivan is not permitted to deny the original title of Davis, unless he had set up and shown fraud in obtaining the lease, or that the premises had been decided, by a competent Court, to belong to another, in a suit in which his landlord had been made a party before his interest passed to McDevitt, or that McDevitt, after his interest