Trespass qu. cl. The alleged acts of trespass were admitted, under claim of right. The plaintiff being in possession of a part of a farm under claim of title, the defendant took possession of the whole farm under a judgment of foreclosure against the plaintiff, and brought a landlord process against him, describing the whole farm in his declaration.
Decided 1878-08-05
Foster, J.
¶1
The recognizance of this plaintiff, in the landlord and tenant proceeding, did not affect the rights of the parties established by the foreclosure of the defendant’s mortgage. The acknowledgment of an obligation to pay rent in case a tenancy shall be found to exist, cannot be regarded as an admission that a tenancy exists. Whatever might ordinarily be the effect of such recognizance in a case where the existence of the tenancy is a disputed question, it cannot have the effect which the plaintiff claims, in a case where it is admitted that the relation of landlord and tenant does not in fact exist, and where the defendant’s possession, under judgment of foreclosure, precludes the possibility of the trespasses alleged.
