¶1It appears, that when the land, for the rent of which this garnishment was sued out, was abandoned by Lamkin, the garnishee took possession of it, and made an ineffectual effort to rent it of Lamkin, and of Reese, both of whom declined to exercise any control over it, there being a law suit between them in regard to it. He then informed them, he should cultivate It, and was willing to pay a rea*637sonable rent; to which no objection was made by either. We think this was a promise to pay rent, to whichever of the two should be ascertained to be entitled- to receive itand it having been determined by the Chancellor, that Lamkin had no right to rescind the contract, and that the land was his, the promise of the garnishee to pay rent, inures to his benefit. In this aspect, and for this purpose only, the decree made in the suit between Lamkin and Reese was competent evidence.
¶2It is further contended, that by the mortgage of Lamkin to the Bank, his right to the possession of the land was gone. When the mortgage is silent as to the right to the possession of the mortgaged estate, if the debt to secure which it was made is not due, the legal inference would probably be, that jhe mortgagee could not enter until the debt was due, and default of payment. In this case, the mortgage provides, that after default, the mortgagee may enter, thereby excluding the presumption of a right to enter before that period arrived. With us, the estate of the mortgagor in possession, has always been considered the legal estate, subject to be divested by the entry of the mortgagee, for a breach of the condition, after default. If the land is in possessian af a tenant, he will be justified in paying the rent to his landlord, until he received notice from the mortgagee that he claims it; and he may, after forfeiture, assert title, not only to that which is subsequently to fall due, but also to that which is in arrear. [Coker v. Pearsoll, 6 Ala. Rep. 543; Chambers v. Mauldin, 4 Id. 477.]
¶3No such claim appears to have been asserted in this case,. The fact that the land was sold in July, 1844, by the Bank, under the mortgage, is not notice of itself to the tenant not to pay over the rent then due to the mortgagor, and as he. could not resist a recovery by Lamkin, so neither can he prevent it, when garnisheed by a creditor of Lamkin, who, upon this garnishment may recover of Smith, whatever Lam-kin could have recovered from him, for the rent, in an action of assumpsit.
¶4The note of Lamkin and Reese to the garnishee and another, as executors, offered iir evidence as a set off, or extinguishment of the debt due for the rent, was properly reject*638ed. A set off is in the nature of a cross action, and can not be allowed where the party offering it could not maintain a suit upon it, against the other party. If Lamkin was suing for the rent, it is clear this note could not be pleaded as an off set, because the garnishee could not sue him upon it in his own name, but must join his co-payee with him in the suit. If he were the survivor, and entitled to sue in his own name, it would be a good set off. That not being shown to be the fact, it was properly rejected.
¶5Let the judgment be affirmed.