The opinion of the court was delivered by
Isham, J.
In this action of trespass on the freehold, the plaintiff seeks to recover damages for trespasses committed during the , season of 1849. For the purpose of showing his title to the premises in question, the plaintiff, on the trial, offered in evidence a mortgage deed executed by Ira Brown to Appollos Austin, dated May 2,1842, with an assignment of the mortgage and transfer of the note to him, made by G. A. Austin as executor of Appollos Austin on the 17th day of April, 1848. The assignment was recorded May 22, 1848, but not acknowledged until May 21, 1851.
At common law, as between the mortgagor and mortgagee the legal estate as well as the right of possession, is in the mortgagee, whether before or after condition broken. And under the provisions of our statute, p. 286, Sec. 12, it has uniformly been considered that the estate and right of possession are given to the mortgagee, after condition broken, and that he may then sustain his action of ejectment against the mortgagor or his grantees even . without notice to quit. Atkinson v. Burt, 1 Aik. Rep. 329. Lyman v. Mower et al., 6 Vt. 345. So that the legal interest and right of possession to these premises were in the estate of Appollos Austin at the time of the assignment of this mortgage to the plaintiff. Wilson v. Hooper, 13 Vt. R. 653. And it is equally true, that on the death of a mortgagee before foreclosure, his right and interest in the mortgaged premises vest in his executor and administrator, to be administered as assets belonging to the estate.
[172]*172But it is insisted that the plaintiff has no right to these premises, and that the assignment of this mortgage, for various reasons, is ineffectual to convey to him that right of property or possession that will enable him to sustain this action. It is to be observed that this is purely a question between the estate of Appollos Austin and the plaintiff as assignee, and that whatever would be suf.ficient to estop the executor from claiming the title and possession as against his assignee, will be sufficient as against the mortgagor, and all claiming under him.
The Comp. Stat. p. 384, Sec. 7, provides that no conveyance shall be good and effectual in law against any other person but the grantor and his heirs only, unless the instrument be acknowledged and recorded; as against the grantor and his heirs the instrument is effectual to convey the legal title, though neither acknowledged or recorded. The assignment in this case as between the parties to the instrument, contains all the necessary requisites of an operative conveyance. It has the usual operative words, was signed, sealed and witnessed, and will estop the executor and the estate from claiming the premises assigned as against the assignee.
It should be acknowledged, as a preliminary step before recording, and as that supersedes the necessity of proving its execution, when produced in court, it is immaterial when it is made, if done when it is offered in evidence. 13 Vt. R. 379, Pitkin v. Leavitt. The same principle applies to the recording of a deed, or other conveyance. For when such an instrument is recorded at any time after its date, it becomes effectual from its date; Douglass v. Spooner, N. Chip. 74, and it may be read in evidence, if recorded at any time before trial. 6 Vt. R. 532, Harrington v. Gage. The assignment, therefore, was properly read in evidence, so far as objections were taken to its acknowledgment. Equally unavailable is the objection, that the executor had no authority to make this assignment without license from the probate court. This objection proceeds upon the ground, that after condition broken, the property becomes real assets, and to be administered as real estate of which the testator died seized. But the Comp. Stat. p. 344, Sec. 29, provides that the debt and mortgaged premises belonging to a deceased person as mortgagee, when not foreclosed in his life time, shall be considered as personal estate in the hands of the executor, and is to be administered and accounted for as such. Un[173]*173der this statute the debt and premises mortgaged are as much under the control and disposition of the executor as any article of personal estate that comes into his possession. He may discharge, release and transfer the same under the powers derived from his letter of administration.
The objection also, that this assignment purports to convey on the part of the assignor “ all Ms right, title and interest?’ to the premises, and not his right, title and interest as executor, must be considered as falling within the principle, and overruled by the case of Stewart v. Thompson, 3 Vt. R. 255. It was there held in the assignment of a mortgage, that the intention of the parties as manifested by the whole instrument, is to govern in its construction. This assignment in its premises describes the assignor as executor of Appollos Austin and in that capacity the instrument is signed and^sealed. When the instrument is signed in his capacity as executor, it is an assignment of his right, title and interest which he has in that capacity, as much so, as if it was so written in the body of the assignment, and equally manifests such to be his intention. And when these instruments are to be carried into effect, according to the evident intention of the parties, we cannot hesitate to say, that this assignment is sufficient to transfer to this plaintiff all the interest and right which was vested in the estate of Appollos Austin, and for that purpose, was sufficient to permit it to be read in evidence as against the defendant.
It is further claimed, that this action cannot be sustained, as the plaintiff was not in possession of the premises under the mortgage at the time of the trespasses complained of, but on the contrary, was in possession as tenant, of Ira Brown the mortgagor. We learn from the case, that the plaintiff went into possession of the premises described in the mortgage deed in the spring of 1847, under some arrangement with Brown, and that he continued in such possession until July or August, 1848. At this time the plaintiff informed Ira Brown that he had bought the Austin mortgage, and distinctly informed him that he held the premises under the mortgage, and at the same time showing him the mortgage deed and assignment.
It is unquestionably true that a tenant cannot deny the title of his landlord,,nor set up an outstanding or paramount title in himself or a third person. 2 Smith’s Lead. Cas. 570. At common [174]*174law this rule did not exist, except in cases where the lease was by deed indented, where the estoppel arose by indenture, and not from the tenancy. Lit. § 58 Co. Litt. 47-6. But since the time of Lord Holt, the rule has been established which precludes the tenant, in all cases where that relation exists, from denying the landlord’s title. Yet the estoppel is equitable and not legal. 2 Smith’s Lead. Cas. 569, 570.
But whatever may be its character “ it only debars him from “ contesting the validity of the title at the time when the lease was “made and possession given, and not from showing that the right “ which the landlord then had was defeasible or limited in its na“ture and has since expired or been defeated.” This rule is given by Lord Denman in Doe v. Barton, 11 Adol. & Ellis 307. Knight v. Smythe, 4 M. & Lel. 347.
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The opinion of the court was delivered by
Isham, J.
In this action of trespass on the freehold, the plaintiff seeks to recover damages for trespasses committed during the , season of 1849. For the purpose of showing his title to the premises in question, the plaintiff, on the trial, offered in evidence a mortgage deed executed by Ira Brown to Appollos Austin, dated May 2,1842, with an assignment of the mortgage and transfer of the note to him, made by G. A. Austin as executor of Appollos Austin on the 17th day of April, 1848. The assignment was recorded May 22, 1848, but not acknowledged until May 21, 1851.
At common law, as between the mortgagor and mortgagee the legal estate as well as the right of possession, is in the mortgagee, whether before or after condition broken. And under the provisions of our statute, p. 286, Sec. 12, it has uniformly been considered that the estate and right of possession are given to the mortgagee, after condition broken, and that he may then sustain his action of ejectment against the mortgagor or his grantees even . without notice to quit. Atkinson v. Burt, 1 Aik. Rep. 329. Lyman v. Mower et al., 6 Vt. 345. So that the legal interest and right of possession to these premises were in the estate of Appollos Austin at the time of the assignment of this mortgage to the plaintiff. Wilson v. Hooper, 13 Vt. R. 653. And it is equally true, that on the death of a mortgagee before foreclosure, his right and interest in the mortgaged premises vest in his executor and administrator, to be administered as assets belonging to the estate.
[172]*172But it is insisted that the plaintiff has no right to these premises, and that the assignment of this mortgage, for various reasons, is ineffectual to convey to him that right of property or possession that will enable him to sustain this action. It is to be observed that this is purely a question between the estate of Appollos Austin and the plaintiff as assignee, and that whatever would be suf.ficient to estop the executor from claiming the title and possession as against his assignee, will be sufficient as against the mortgagor, and all claiming under him.
The Comp. Stat. p. 384, Sec. 7, provides that no conveyance shall be good and effectual in law against any other person but the grantor and his heirs only, unless the instrument be acknowledged and recorded; as against the grantor and his heirs the instrument is effectual to convey the legal title, though neither acknowledged or recorded. The assignment in this case as between the parties to the instrument, contains all the necessary requisites of an operative conveyance. It has the usual operative words, was signed, sealed and witnessed, and will estop the executor and the estate from claiming the premises assigned as against the assignee.
It should be acknowledged, as a preliminary step before recording, and as that supersedes the necessity of proving its execution, when produced in court, it is immaterial when it is made, if done when it is offered in evidence. 13 Vt. R. 379, Pitkin v. Leavitt. The same principle applies to the recording of a deed, or other conveyance. For when such an instrument is recorded at any time after its date, it becomes effectual from its date; Douglass v. Spooner, N. Chip. 74, and it may be read in evidence, if recorded at any time before trial. 6 Vt. R. 532, Harrington v. Gage. The assignment, therefore, was properly read in evidence, so far as objections were taken to its acknowledgment. Equally unavailable is the objection, that the executor had no authority to make this assignment without license from the probate court. This objection proceeds upon the ground, that after condition broken, the property becomes real assets, and to be administered as real estate of which the testator died seized. But the Comp. Stat. p. 344, Sec. 29, provides that the debt and mortgaged premises belonging to a deceased person as mortgagee, when not foreclosed in his life time, shall be considered as personal estate in the hands of the executor, and is to be administered and accounted for as such. Un[173]*173der this statute the debt and premises mortgaged are as much under the control and disposition of the executor as any article of personal estate that comes into his possession. He may discharge, release and transfer the same under the powers derived from his letter of administration.
The objection also, that this assignment purports to convey on the part of the assignor “ all Ms right, title and interest?’ to the premises, and not his right, title and interest as executor, must be considered as falling within the principle, and overruled by the case of Stewart v. Thompson, 3 Vt. R. 255. It was there held in the assignment of a mortgage, that the intention of the parties as manifested by the whole instrument, is to govern in its construction. This assignment in its premises describes the assignor as executor of Appollos Austin and in that capacity the instrument is signed and^sealed. When the instrument is signed in his capacity as executor, it is an assignment of his right, title and interest which he has in that capacity, as much so, as if it was so written in the body of the assignment, and equally manifests such to be his intention. And when these instruments are to be carried into effect, according to the evident intention of the parties, we cannot hesitate to say, that this assignment is sufficient to transfer to this plaintiff all the interest and right which was vested in the estate of Appollos Austin, and for that purpose, was sufficient to permit it to be read in evidence as against the defendant.
It is further claimed, that this action cannot be sustained, as the plaintiff was not in possession of the premises under the mortgage at the time of the trespasses complained of, but on the contrary, was in possession as tenant, of Ira Brown the mortgagor. We learn from the case, that the plaintiff went into possession of the premises described in the mortgage deed in the spring of 1847, under some arrangement with Brown, and that he continued in such possession until July or August, 1848. At this time the plaintiff informed Ira Brown that he had bought the Austin mortgage, and distinctly informed him that he held the premises under the mortgage, and at the same time showing him the mortgage deed and assignment.
It is unquestionably true that a tenant cannot deny the title of his landlord,,nor set up an outstanding or paramount title in himself or a third person. 2 Smith’s Lead. Cas. 570. At common [174]*174law this rule did not exist, except in cases where the lease was by deed indented, where the estoppel arose by indenture, and not from the tenancy. Lit. § 58 Co. Litt. 47-6. But since the time of Lord Holt, the rule has been established which precludes the tenant, in all cases where that relation exists, from denying the landlord’s title. Yet the estoppel is equitable and not legal. 2 Smith’s Lead. Cas. 569, 570.
But whatever may be its character “ it only debars him from “ contesting the validity of the title at the time when the lease was “made and possession given, and not from showing that the right “ which the landlord then had was defeasible or limited in its na“ture and has since expired or been defeated.” This rule is given by Lord Denman in Doe v. Barton, 11 Adol. & Ellis 307. Knight v. Smythe, 4 M. & Lel. 347. 2 Smith’s Lead. Cas. 570. Jackson v. Rowland, 6 Wend. 666. And this principle has been applied to cases very Similar to this in facts. 15 Pick. Rep. 147, Smith v. Shepherd. 1 Met. Rep. 494, Welch v. Adams. 9 Bing. Rep. 613, Hapcraft v. Keyes. 3 Mass. Rep. 156, Newel v. Wright.
In this State it has been held, “that a tenant may repudiate his “ tenancy and set up an adverse claim in his own right, if this is “made known to the landlord,” North v. Barnum, 10 Vt. R. 223, “ and when the tenant notifies his landlord that he shall no longer “hold under him, the relation ceases. The possession has become “ adverse, and the statute of limitations begins to run.” 9 Vt. R. 37, Greeno v. Munson. And under the decisions in England and in this State, we have no doubt that if the plaintiff first entered into possession of these premises under the mortgagor, as his tenant, still he might repudiate that tenancy by purchasing the Austin mortgage as being an older and better title, and protect himself in his possession of the premises, from any claims of his former landlord. And whenever by purchasing such title he is entitled to the right of possession, it would be an idle ceremony to require the tenant to surrender up his possession, and then resort to his action of ejectment, when its only effect can be, to put the plaintiff in the same situation he now occupies. We apprehend this is not required by the law, and Lord Denman, C. J., in Doe v. Barton, observes, “that it seems absurd to require him to go “through the form of an ejectment in order to put them into the [175]*175“very position in which they now stand.” When, therefore, the plaintiff exhibited to Ira Brown, in the summer of 1848, the mortgage deed and the assignment of the same to him and informed him of his ownership, and notified him that he held the premises under that mortgage, it was a repudiation of the tenancy and a dissolution of that relation, and his possession thereafter was adverse. Chitty on Cont. 841. 1 Moo. & Pag. 480. And there was no necessity of surrendering the possession to the mortgagor, and then bringing his action of ejectment, for it could only place him in the same situation in which he then was. The court therefore very properly charged the jury, that upon those facts the plaintiff had such title and possession as would enable him to sustain this action.
The premises on which these trespasses were committed were conveyed by Ira Brown to the defendant on the 16th of October, 1848, and are situated east of the dotted line on the plan which is made part of the case.
The important question arising in this case is, whether in point of fact, the mortgage deed given to Austin and assigned to the plaintiff, includes the tract of land on which the trespasses were committed, and which was conveyed to the defendant. This is a question of law and depends upon the construction which should be given to the deed. The premises are described by references to the lines and lands of adjacent proprietors. No other monuments are referred to, and courses and distances are not otherwise given. And if we were to be governed entirely by the land of adjacent owners, the calls of the deed can be answered, and the land be included or excluded, on an equally reasonable construction of the deed. For if the first or north line in the description commencing in the north-east corner of Fuller Brown’s land, thence running east on Pendleton’s south line to Hiram Brown’s land, terminates at the south-west corner of Brown’s land at the dotted line, the premises would not be included in the mortgage. But if the line is continued past that corner until it strikes Brown’s land lying east of this lot, then the premises are included in the deed. The quantity of land which the parties intended to mortgage was a lot containing about forty acres, as expressed in the deed, and this statement is verified only by including the land in the mortgage. This circumstance with the absence of all pos[176]*176sible motive not to include it witb the remainder of the lot, has induced us to consider it as covered by the mortgage, as this construction answers all the calls of the deed, and manifestly carries into effect the intention of the parties. The premises therefore being included in the deed, and the plaintiff having this title and possession at the time of committing the trespasses for which the action is brought, we see no reason for disturbing the verdict in the case.
The judgment must he affirmed.