majority">Cole, J.

The facts are few and are not controverted. October 22, 1867, E. Dorstal executed a mortgage upon the premises to Donovan, to secure a note for $250, due one year thereafter, given for the balance of the purchase money.’ This mortgage was duly recorded October 22, 1869. On January 1870, Groff, the defendant, became, by purchase, the owner of the note and mortgage. November 1,1.870, Dorstal, the mortgagor, leased said premises, by parol, to Leroy, for one year from that date, and he entered, at once into possession. Janu*598ary 4,1871, Groff commenced, his action of foreclosure against Dorstal, the mortgagor, but did not make Leroy, the lessee and tenant, a party thereto, not having at that time any knowledge of the lease. A judgment of foreclosure was obtained, and on April 29,1871, the premises were sold, under appraisement, to the defendant herein, Groff, and on May 8, .1871, the sheriff conveyed the same to him by deed, which was then duly recorded. June 3,1871, Groff and wife conveyed the premises to this plaintiff, Amanda J. Downard, with the following covenants, upon which the breach sued for in this action, is assigned: — “and we do hereby covenant with the said Amanda J. Downard, that we are lawfully seized in fee-simple of said premises;- that they are free from incumbrance; that we have good right and lawful authority to sell the same, and we do hereby covenant to warrant and defend the said premises, and appurtenances thereto belonging against the lawful claims of all persons whomsoever.” On June 23, 1871, this jriaintiff brought her action against Leroy, before a justice of. the peace, to recover possession of the premises, but was defeated, at a cost of $17. No appeal was taken from the judgment against her, because the lease would expire before a hearing of the appeal could be had. On September 21, 1871, this action was commenced.

We deem it unnecessary to set out or review the instructions at length; but will state briefly the law applicable to the 1. mobtgage: tenant: cm-Memento. case. It may be conceded, that since Leroy, the , . , tenant, was m possession under a lease from the mortgagor, and was not made a party to the foreclosure suit, that he is not bound or affected by the judgment therein. But this fact does not alter the rights of the mortgagee, or of the purchaser under the foreclosure sale, as against such tenant. It only affects the remedy and defeats the use of the judgment as evidence. By the lease from Dorstal, the mortgagor, to Leroy, the latter acquired no greater rights in the premises than the mortgagor had. The tenant stands exactly in the situation of the mortgagor. As between the mortgagor and mortgagee, the latter, by the foreclosure and sale, became entitled to the 2>ossession of the premises, and to all the crops then *599growing thereon. This right of the purchaser was not and could not be defeated by reason of the lease, or by the fact that the possession was in, or that the crops were grown by, the lessee. The right to the possession, and the right to the growing crops passed to the purchaser. If the tenant had been made a party to the foreclosure suit, the possession and the crops could have been delivered to him by process under that judgment; but since he was not made a party thereto he cannot obtain that remedy except by some, other action. The purchaser’s rights however are just the same as they would have been if the tenant had been made a party. It follows, therefore, that Groff by his purchase and shei’iff’s deed, became the absolute owner of the premises, including the crops growing thereon; and by his conveyance he invested the plaintiff herein with that ownership, and she might by proper action, have enforced her rights as such owner against the tenant. Her failure to do so cannot give her any cause-of action against the defendant, her grantor. There was, therefore, only a technical breach of warranty, entitling plaintiff' to nominal damages.

This is clearly the doctrine of *all the- cases, both ancient and modern, unless it may be the case of Cassilly v. Rhodes, 12 Ohio, 88, and that case seems to be based'upon a construction of the appraisement law of that state. And' the yvhole matter is well summed up in Jones v. Thomas, 8 Blackford, 428, as follows: “A mortgagor is not entitled to emblements as tenants at will are, 4 Kent’s Com., 456. A mortgagee may evict the mortgagor without notice, and retain the-emblements; and if a lease be granted subsequently to the mortgage without his concurrence, he may evict the lessee without notice and retain the emblements. Coate on Mort, 351; 2d Swift’s Dig., 156; 2d Cruise’s Dig., 108. The reason of this was said by the older writers to be, that the lessee was evicted by a title paramount, and the lease of the mortgagor amounted to a disseisin of the mortgagee, which rendered the lessee upon entry a wrongdoer. But a sufficient and better reason appears to be, that every person who takes under a mortgagor, tabes subject to all the rights of the mortgagee, unimpaired and unaffected, 4 Kent’s *600Comm., 157; 16 Johns. E., 292; 18 1b., 487; 6 Oowen 147. When, therefore, a mortgagee obtains the absolute estate in fee of the mortgaged premises, by becoming the purchaser under a foreclosure and sale, he is entitled to the emblements, and may maintain trespass against the mortgagor, or his lessee for taking and carrying away the crops growing at the time of the sale. Lane v. King, 8 Wend., 584; the title and interest of the mortgagor or his lessee being subject to, and liable to be divested by a foreclosure and sale of the mortgaged premises. Shepherd v. Philbrick,, 2 Denio., 174.” See also the cases cited in a note to the last case, and also the numerous authorities cited, and stated in note c, Ch. 9, Vol. 1, Hill on Mortg., (3d ed.)

Eevebsed.

Citation profile

How this case has been treated — in progress