Coker v. Pearsall

6 Ala. 542

• Court: Supreme Court of Alabama
• Decided: January 15, 1844
• Status: Published

Opinion

ORMOND, J.

Upon the forfeiture of the mortgage, Cock-rell, the mortgagee, became entitled, to the possession of the mortgaged premises; and upon notice to the tenant, the latter became responsible 'to him, not only for the rent falling clue subsequently, bpt for thé rent then in arrear. [See Moss v. Gallimore, Douglass, 266, where the doctrine, and the reason upon which it is founded, are stated at large. To the same,effect is Mansony & Hirtel v. The U. S. Bank, 4 Ala. 746; and Chambers v. Mauldin, id. 477.]

The plea does not, it is true, expressly allege notice to the tenant» but it does allege that the 'tenant attorned to the mortgagee, and paid him the relit, which must be considered an admission of notice that the mortgage was forfeited, and that the mortgagee was entitled to the rent. Such being the case, he was not responsible to the mortgagor, or those claiming under him; and it became, therefore, unnecessary to consider the effect of the reservation of the rent by parol, where the conveyance of the fee was made to Cockrell, because there was no right existing either in McRae or Pearsall to be reserved.

It results necessarily, that the court ei’red in permitting the evidence to go to the jury; and the judgment must be, therefore, reversed, and the cause remanded.