In the case of Keech v. Hall, 1 Doug. 23, in reply to a suggestion that the tenant of a mortgagor was entitled to emblements, Lord Mansfield said: " I give no opinion upon that point; but there may be a distinction, for the mortgagor may be considered as receiving the rents in order to pay the interest by an implied authority from the mortgagee, till he determine his will. As to the lessee's right to make the crop which he may have sown previous to the determination of the will of the mortgagee, that point does not arise in this case, the ejectment being for a warehouse; but however that may be, it would be no bar to the mortgagee's recovering in ejectment. It would only give the lessee a right of ingress and egress to take the crop; as to which, with regard to tenants at will, the text of Littleton is clear."
In this State it has been held, from an early day, that a mortgage is but a security for a debt; that the title to property mortgaged remains in the mortgagor, and with it the right of possession, which is one of the ordinary incidents of title. Duty v. Graham, 12 Tex. 427; Wright v. Henderson, 12 Tex. 44; Wootton v. Wheeler, 22 Tex. 338.
Such being the legal effect of a mortgage in this State, it will be readily seen that the foundation upon which the rights of mortgagees is based in England and in some of the States wholly fails:
1st. There the paramount title is held to be in the mortgagee; here the paramount title remains in the mortgagor, and no estate passes to the mortgagee unless through foreclosure.
2d. There the right to the immediate possession of the mortgaged property vests in the mortgagee, with the consequent right to appropriate the fruits and revenues without liability to account, unless called upon to do so in a proceeding to enforce the equity of redemption; here no right to the possession, nor to the fruits and revenues so long as the mortgage stands unforeclosed, unless under some proceeding peculiarly equitable.
3d. There the mortgagor, under the conflict of authority, is held to be either a tenant at sufferance or a tenant at will, with no power to do aught else than, under the strict rules of the common law, a tenant with the feeblest tenure may do, a lease by him operating as a disseisin of the mortgagee, and making himself and his lessee tort feasors; here he is the owner of the fee, if such be his estate in the land which he mortgages, recognizing no landlord, neither a tenant at will nor a tenant at sufferance, in any sense in which these terms can be legitimately applied, for the owner cannot be, in the nature of things, the tenant of any one; he has power to lease without disloyalty to any one, his lease, if made after mortgage, subject, however, to be terminated in case of foreclosure before its expiration.
The reason sometimes given, why a mortgagor should not be permitted to have the crops still standing upon the land at time of foreclosure, is, that he may obtain their value in account upon bill to redeem; with us this reason can have no effect, for there is no such thing in our practice as the right to redeem after foreclosure, which is made by sale.
The crops were planted, cultivated, and, in fact, must have been almost, if not quite, matured before the sale in September, and while the paramount title to the land upon which they grew was still in Moore, the vendor of Gill, Moore sold them. The element of uncertainty, in so far as Gill was concerned, as to the continuance of title in his vendor, was very nearly as great as though he had held as tenant at will. The direction of the creditor to sell under the deed of trust, and thereby place in himself or some other person the title to the land was an act of will, without the exercise of which the paramount title to the land would continue in Moore; and even such exercise of the will would not necessarily affect that result; for Moore might be able to pay the indebtedness and thereby effectually prevent the divestiture of his title.
Where the mortgage is held to vest the title in the mortgagee, no such elements of uncertainty exist; he may enter whenever he pleases.
The right of a person purchasing under a foreclosure of a mortgage, where it is held that the mortgage passes no estate, but is a mere security, to have the crops on the land at time of foreclosure is questioned by Mr. Washburn. I Washburn on Real Property, 124. The reasons for the rule in question not existing here, it seems to us the rule must be held not to exist.
The deed of trust seems to evidence the fact that the parties contemplated, even if sale was made under it, that Moore and those claiming under him should not at once surrender the land to the purchaser, but from the time of the sale should attorn to the purchaser, which carries with it, by implication, at least an agreement that, from such time, Moore or his assigns should, as tenants, recognize the purchaser as the landlord and pay rent for the land from the time of foreclosure.
By attornment is meant " the act of recognition of a new landlord, implying an engagement to pay rent and perform covenants to him. The word is taken from the feudal law, where it signifies the transfer, by act of the lord and consent of the tenant, of the homage, service, fealty, etc., of the tenant to a new lord who had acquired the estate." Abbott's Law Dictionary.
It is true that the trust deed provides that the holding shall be as tenant at sufferance; but there can be no such thing as tenant by sufferance when the tenancy is the result of agreement such as is found in the trust deed, with reference to which the purchaser must be presumed to have bought, and by which he is as much bound as though he had been a party to that instrument; and in the absence of something in the agreement evidencing that it was the intention of the parties, after the foreclosure, to have their rights to stand strictly upon the relation of landlord and tenant at sufferance, the parties should be held to have intended that such a tenancy should exist as is created by agreement; at least a tenancy at will, which would carry with it the right to the crops then nearly or quite matured, but ungathered at time of foreclosure.