Berlack v. Halle , 22 Fla. 236 ( 1886 )

Mr. Justice Raney

delivered the opinion of the court:

The first question to be disposed of is as to the introduction of the decree of foreclosure in support of the master’s deed, in the absence of such prior proceedings a& showed jurisdiction. In so far as jurisdiction of the parties to the suit in which this decree was rendered is concerned the objection was cured by the defendant, Berlack, having introduced the bill and other proceedings in the cause. The effect of this decree and the other proceedings in the suit, including the sale, upon the land and the defendant’s rights therein, are to be considered.

The subpoena in the foreclosure suit was issued on the 25th day of September, 1879, and was served on the next day. At this time the legal title was and had been in. Myers for more than three years, by deed from Warrock and wife made March 20, 1876, and recorded in the clerk’s-office of Duval county nine days after its execution. It is true that that there had been a failure to comply with the conditions of the mortgage prior to the conveyance to Myers, but this did not vest the legal title in Benedict, the mortgagee, nor in his assignee, Sayre; it remained in Warrock until he conveyed it to Myers. The legal title is divested only by forfeiture of the conditions and a sale under the decree of the court. The mortgagor remains until a sale, seised in fee. McMahon vs. Russell, 17 Fla., 698 ; Pasco vs. Gamble, 15 Fla., 562. Cases which maintain, as Frische vs. Kramer, 16 Ohio, 138, and others, that as between mortgagor and mortgagee, and persons holding under either or both after condition broken, the legal estate becomes absolute in the mortgagee, subject however to be redeemed by payment of the debt, are not consistent with the former decisions of this court, or with our own views of the statute.

The owner of the legal title is a necessary party to a suit for foreclosure of a mortgage. Jones on Mortgages, §1394; Barbour on Parties, 502; Hall vs. Nelson, 23 Bar., 88 ; Reed vs. Marble, 10 Paige, 409. Myers was not a party to the foreclosure suit, so the title remained in him unaffected by it, (Reed vs. Marble, supra; Wilson vs. Spence, 20 Wend., 260,) and is now in Jordan. The decree did not change Sayre’s status to the land. Warrock and wife having conveyed, they had no longer any right to redeem the land from mortgage, as holders of the legal title, whatever Warrock’s duty to pay the debt secured by the mortgage was. The legal title has never been in Benedict or Sayre. The mortgage did not put it in the former ; nor did the alleged foreclosure suit, decree and sale put it in Sayre, because the legal title was not before the court; and consequently it was not conveyed by the deed to Mrs. Halle. She has no better status than that of an assignee or holder of the mortgage with, to say the most, an accounting decreed against Warrock, whatever such decree may be worth as such an accounting as against the holder of the legal title.

There is nothing to show that Warrock, who continued in possession after his conveyance to Myers, held adversely to Myers. When he gave possession to Sayre he did not have the legal title, it was in Myers ; he must be presumed to have held under Myers’ title, and not adversely. Bedell vs. Shaw, 59 N. Y., 46. Had he then held the legal title, we do not think that a mere surrender of possession to Sayre would have passed such title to the latter. Trimm vs. Marsh, 54 N. Y., 599.

It is not necessary for us to question the doctrine of those cases which hold that a mortgagor or his assigns cannot recover in ejectment against a mortgagee lawfully in possession. There is nothing to show that Sayre was ever lawfully in possession as against Myers or that Warrock, who prior to putting Sayre in possession had conveyed all his interest in the land to Myers, was authorized by the latter to deliver possession for him to Sayre. Had Warrock delivered possession before making the deed to Myers the case of Gillet vs. Eaton, 6 Wis., 30, would be more in point, yet there would still be the difference that in it, as in Tallman vs. Ely, Id., 244, the mortgagee was in possession defending, while here he is suing an ejectment for possession. Sayre’s possession as against Myers is no better than Warrock’s, and there is no basis in the record for the position that Myers could not recover against Warrock, were he in possession. The lawful possession as against the mortgagee is with the holder of the legal title under our statute, at least until it be shown that he has parted with it of his own volition or it has been taken from him by judicial proceedings to which he is a party. In Tallman vs. Ely, the mortgagee was regarded as lawfully in possession, and the doctrine of Frische vs. Kramer, supra, is approved. In Howell et al., vs. Leavitt, 95 N. Y., 617, it is said that “ in most of the cases which have upheld the right of the mortgagee to possession, his possession was obtained with the consent express or implied of the owner of the land, although in some of them the mode of acquiring possession did not distinctly appear, and in many the rule is stated quite broadly and with little of restriction or limitation.” Assuming that the right of retention of possession against an assignee of the mortgagor will be recognized under our statute, we think such right of possession must emanate from the mortgagor while he is the owner of the legal title, or in other words, prior to his conveyance of it to his grantee. The burden is upon the mortgagee to show that he has the right to possession. Goss vs Welwood, 90 N. Y., 638 ; Bedell vs. Shaw, 59 N. Y., 46. And under our statute an ordinary mortgage is not itself evidence of any such right. Gamble & Poole vs. Pasco; McMahon vs. Russell, supra.

As the legal title was not affected by the foreclosure proceedings, or the deed under them, we do not think such proceedings or deed were of any effect to show a legal title in Sayre, as against Myers, or Jordan, or any one claiming under them. Reed vs. Marble, 10 Paige, 409.

Upon the rule, that in ejectment the plaintiff must recover upon the strength of his title, Mrs. Halle has no standing, for she has not connected herself with the legal title, except to show a specific lien upon it which is not the basis of a recovery in this action. Gamble & Poole vs. Pasco, supra; nor has she shown a lawful possession emanating from the holder of such title.

The testimony shows no act of possession by Sayre subsequent to April, 1883, when Spearing says he turned over the possession to Sayre. Jordan, without warrant from another, took possession, and he built up the fences about June 14, 1884. How long before this he had been in possession, he does not say. He says the property was vacant and unoccupied when he took possession. He allowed Hernandez to occupy it and the defendant was his tenant at the execution and delivery of the deed by Myers, and of the institution of the action of ejectment; that he, Jordan, was in actual possession, and the deed from Myers covers the property.

The testimony shows that the defendant was in possession under Jordan, and Jordan at the commencement of the action held the legal title, and such being the case, under the facts as reviewed above, we think his possession is protected by title from Warrock, through Myers, against the plaintiffs, who have no legal title, and no authorized possession as against Jordan as the holder of the legal title from Myers.

The Circuit Judge erred in the charge he-gave to the jury, and in refusing to give the instructions offered by the defendant. The former is in conflict with the views we have expressed, and the latter are consistent with such views as will be seen by considering therm

The judgment is reversed and a new trial granted.