#### W. F. JONES *v.*A. B. HILL.

*A*was assignee of a mortgage creditor, and at a sale by the mortgagee, made under a power in the deed, bought the land mortgaged *; B*had previously purchased the mortgagor’s interest in the land, and then had let the land for a year to *G,*who was in possession : *Held,*that *A,*upon making demand for posession upon *G,*could recover from him rent due for the year of his tenancy.

*Also,*that 0 had a right to enquire, by an account in the case, whether the price given by *A*upon his purchase exceeded the amount due to him as assignee of the creditor, and if so, then, as representing *B,*probably *G,*might have the benefit of the surplus, for the purpose of his defence.

*(Fuller y. Wadsworth,*2 Ire. 263, and *Hyman*v. *Devereux*63 N. C., 624, cited and approved.)

Motion to vacate an injunction, beard by *Watts, J.,,*January 19tb 1870, at Chambers, Halifax Court.

Tbe action in wbicb tbe injunction bad been ordered, was based upon tbe following facts:

In 1859 John Devereux sold certain lands to Gavin H. Clark, wbo executed a mortgage to secure tbe price, thereby empowering Devereux, in default of payment of tbe price, to sell tbe lands, «See. Clark paid part of tbe price, and then sold bis interest to Hyman, who gave bis notes for tbe residue of tbe purchase money, to Mrs. Elizabeth Jones, wbo, as. assignee of Devereux, held tbe unpaid notes of Clark. Af-terwards she assigned them to tbe plaintiff. Hyman took possession of the land, and leased it to the-defendant for tbe current year beginning January 1st 1869. On tbe 26th of August 1869 Devereux sold tbe land, under the power, and tbe plaintiff became tbe purchaser. Soon afterwards be demanded possession of tbe lands from tbe defendant, wbicb was refused. He then (10th Nov. 1869) commenced this- ■ action, to recover tbe rent for 1869, wbicb be claims to be 11,500. Tbe complaint alleged that tbe defendant is insolvent and is disposing ot tbe crop, and prayed for an injunction to. restrain tbe defendant in tbe meantime, from disposing; of more of it.

*199Aq answer put in by the defendant, admitted the charge of insolvency, and that he had sold a part of the crop.

The Judge granted, and, on a motion to vacate, continued, the injunction; and the defendant appealed.

*jRogers Sc*Batchelor, for the appellant.

1. The action is *for rent,*and therefore has been brought too soon.

2. The action is not brought for *the land;*if it be said that the plaintiff may maintain a • suit for that, as purchaser.

3. He makes no case for an injunction: 0. 0. P. §§188, 189.

*Bragg, contra.*

1. The mortgagee may treat the lessee either as trespasser or as tenant, Orabb, RealProp. §2217, *Pope*v. Briggs, 9 B. *Sc*0. 245; much more may the plaintiff, after the sale under the power, having rights of both mortgagor and mortgagee. Coote Mortg. Part 1, 332 to 334; *Lane*v. *King*8 Wend. 584; *Crews*v. Pendleton, 1 Leigh 297; *Shepherd*v. *PMIbricli,*2 Denio 174; *Pones*v. Thomas, 8 Blackf. 428.

2. Although plaintiff may not be *in privity*with the defendant, yet this action can now be considered as one in equity, as well as at law.

3. As defendant admits his insolvency, and that he is about to remove the crop, having already removed a part of it, the plaintiff is entitled to an injunction.

Rodman, J.

(After stating the facts as above.) Under the facts of this case, Hyman must be regarded as a mortgagor, and the plaintiff as a mortgagee, of the lands mentioned in the complaint, *Hyman*v. *Devereux,*63 N. C. 624. If a mortgagor remains in posession after the forfeiture of the property, he remains only by permission of the mort*200gagee. In snob, case tbe mortgagor bas been sometimes called a tenant at will or sufferance, and sometimes a trespasser ; but be is properly neither ; bis position cannot be more accurately defined than by calling bim a mortgagor in possession, bntbe maybeejectedatanytimebytbemortgagee, without notice, *Fuller*v. *Wadsworth,*2 Ire. 263. The mortgagee is entitled to tbe estate with all tbe crops growing on it, by Buller J. in *Birch*v. *Wright,*1 T. R. 283; Coote on Mortgages 333, 339 ; Liffords case 11 Co. 51; Doe. dem. *Fisher*v. *Giles,*5 Bing. 421, (15 E. C. L. 485); *Roby*v. *Maisey,*8 B. & C. 769, (15 E. C. L. 377); *Parsley*v. *Day,*2 Q. B. 14, (42 E. C. L. 612.)

There is no injustice in this, because tbe land, including all its products, is a security for tbe mortgage debt, and to that extent, tbe property of tbe mortgagee. Tbe mortgagor bas no right to make a lease, to tbe prej udice of tbe *mortgagee;*tbe lease is void if tbe mortgagee elects to bold it so; Coote on Mortgages, *ubi. sup.; Keech*v. *Hall,*Dougl. 21; *Birch*v. *Wright, ubi. sup.; Pope*v. *Biggs,*9 B. & C. 245. (17 E. C. L. 358.)

If tbe mortgagor could]lease, he might altogether defeat tbe claim of the mortgagee.

By bis purchase on 26 tb August, the plaintiff acquired tbe legal estate, in addition to bis previous rights as mortgage creditor: be purchased tbe land and all tbe crops growing on it. Plyman, if be bad been in possession, would not have been entitled to emblements, neither is bis lessee. In this case, however, tbe plaintiff elected to confirm tbe lease, and therefore be is entitled to no more than tbe reasonable rent, which is all be demands. *Coote on Mortgages,*334.

If indeed the amount of tbe purchase money overpaid tbe sum due tbe mortgagee, Hyman would be entitled to tbe surplus, and tbe defendant, as tbe assignee of Hyman, would probably be entitled to be subrogated to bis rights, to the amount of tbe rents payable by bim. If tbe defendant shall desbe it in this case, |be will be entitled to have an *201account of the mortgage debt taken, in order to ascertain whether it has been overpaid. In that case the defendant must amend his pleadings, so as to present the issue, and the executors of Hyman should he made parties, in order that they be bound by the account. The right of the defendant to this account, arises from the fact that the plaintiff unites the double character of mortgage creditor and purchaser; as purchaser alone he would not be affected by the state of the-account.

Whether amere creditor without any specific lien, is entitled to the provisional remedy of a seizure of his debtor’s property, upon the allegation that he is about to dispose of it, and whether a landlord is entitled to such remedy for the recovery ■of rent, except as given by the Act concerning Landlord and Tenant, 1868-9, ch. 156, p.355, need not be considered. In this casejthe plaintiff does not claim, either as a mere creditor, ■or as a landlord, but as the owner of the whole crop in specie, and as having a specific property in every part of it. That he does not in fact claim the whole, but only a reasonable •share of it as rent, cannot impair his remedy for that part.

Let this opinion be certified.

Per Curiam. Judgment affirmed.