Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1848-05-11
Circuit Court of the II. States.
DISTRICT OF VERMONT. MAY rrnM LAG

UT 'rnhoNf, MAY TERM, 1886.
In eiectment, Ebenezer Marvin "a. Isaac Dem
nison ct al, present, Nelson and Prentisa.
Judges, 1t appeared that one Of the defendants
CANNED title to the lands in question, under a
mortgage from the others, and that the others
were in the actual occupancy of the lands; but
there being no evidence that the defendant, so
claiming as mortgagee, was in actual possess
ion, il was objected that the action could not be
maintained against him. The court overruled
The objection, on the grounds and for the reasons
stated IN the following opinion.
PRENTIss, 1.-The object of the action of
eJectment, as adopted and in use in this State, is
not merely to recover the possession but to settle
the title and establish the right of property az
well as TO recover the possession. To this end,
and to prevent repetition of action the iudp-
ment, instead Of leaving the title and rioht of
property unsettled, and the same question liable
to be retired by successive suits, as at common
law, is made conclusive as to all the parties.
Looking to the purpose and effect of the action
as thus defined and regulated, il would seem
that, as a general rule a practice naturally ra.
suling therefron, Independent of any special
legislative enactment on the subject, any person
under whom the tenant in possession may, le-
gally speaking, be said TO hold, whatever NAV
be the nature or character Of the tenancy, should
be liable to be made party to the action.
How tar the statute regulation, that I" the act
ion shall he brought as well against the landlord
as the tenant in possession of the PREMISES
which makes the jonder imperative, instead Of
leaving 1t optional with the plaintiff, as it other
wise would be, does or ought to be held to ex-
tend, Is question of construction. IF it EN-.
braces all tenancies, tenancies of every nature
and kind, then, of course, the parties to all not
only may but must be joined. If it extends only
to particular class of tenancies, such as are
created by lease, reservDg rent, service, or other
equivalent duty, where the relation of landlord
and tenant strictly and properly exists, rs would
seem to be the more reasonable and Just construc-
tlon then all other tenancies not within the par
ticuar regulation, remain subject to the common
rule, and the parties to them, like parties in other
analogous cases, may, but need not be joined.
To the Iolnder OF mortgage with mortgagor,
we are not able to perceive any well founded OBJ
lection; nor any, we may add, to the jondor of
vendor with vendee where the latter holds under
a bond or contract for 4 deed, or trustee with
cesta QUE trust where the latter is in possession
under the trust title. In these and other cases
OF like nature, but especially in that of mort
gagee and mortgagor, there is such relation or
connection existing between the respective par
ties as constitutes tenancy, though it may not
amount to that OF landlord and tenant within the
meaning Of the statute. mortgagee If he
claims title under the mortgage, cannot be al
lowed, in contradiction to the tenancy, to set
himself up or claim to be treated, as a stranger
TO the possession. IF he claims nothing uader
the mortgage, and would on that ground not
only discharge himself from but recover costs,
there can be no injustice or hardship in compell-
ing him TO disclaim, so that he may be forever
estopped by matter Of record from setting up
any title under the mortgage.
If the mortgage cannot be made party, the
a. hA
since judgment against the morlgagor, though
conclusive upon his rights, would have no effect
upon the rights Of the mortgage, who would
be at liberty to bring all action in his own behalf
and have the title tried over again, or to leave it
unsettled and open to litigation during his plea
sure until the statute of limitations should run
Instead OF such being the rule of practice, it
would seem to be more consistent with the gem
eral reason and policy of the law, that all the
parties TO the ttle under and subsidiary to which
the possession is held, SHOULD be liable to be
Joined in the first Instance and the title finally
settled rs to all in one suit. The fitness and
propriety of this will appear none the less obvi-
Gus, when it is considered that otherwise, espe-
cially where different courts acting under differ
ent and independent Jurisdictions exist and may
be resorted TO, there might, possibly, be conflict
ing decisions upon the same title.
As the mortgage, even after default of pay
ment, has no right, or but an imperfect right,
under any view of the law 10 the rents and profits,
until demand made or action brought, he can be-
answerabe for them only when he has received
them. 1t has been argued, however, that if there
is a recovery against him for seizin and possess
ion, there must also Of necessity, according to
technical rules, be judgment against him for the
rents aud profits. But we see no such technical
difficulty, nor indeed any practical difficulty what
ever, if the parties plead severally, as they NAV
do, in giving Judgment in such case for the dam
ages against the morigagor alone.
No adjudication Of the state court has been
brought to our notice or referred to by the coun.
sci, nor are we favored with information in any
other way how the subject i'd or has bcen con-
sidered there. We learn, however, that the pre-
else question here presented was determined in
this court several years ago by the late Judge
Thompson, and we all know how to appreciate
the soundness as well as the learning and ability
of his Judicial opinions. On the authority of
that decision, thus IN point, as well as upon our
own judgment on the merits of the matter CIV
en- in the views already expressed, the objection
taken by the defendants counsel must be over
ruled