This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In jurisdictions where a mortgage transfers the legal title, if a lease was made by the mortgagor before executing the mortgage, the mortgagee is in the position of a transferee of the reversion, and may consequently demand that the lessee pay the rent to him instead of to the mortgagor, and the lessee, after such notice, is liable to the mortgagee for rent, accruing since the date of the mortgage, which is due and as yet unpaid, and likewise for all rent thereafter becoming due,79 unless, perhaps, this has been paid in advance.80 The rights of the tenant under such lease to possession of the premises cannot, however, be affected by the making of a subsequent mortgage.81 In jurisdictions where a mortgage does not transfer the legal title, but gives a lien merely, the tenant under a lease is not affected by the subsequent making of a mortgage by the landlord,82 and the mortgagee is not substituted as landlord.83
79. Moss v. Gallimore, 1 Doug. 279, Comer v. Sheehan, 74 Ala. 452; King v. Housatonic R. Co., 45 Conn. 226, Castleman v. Belt, v. Wilson, 10 Mete. (Mass.) 126; Hogsett v. Ellis, 17 Mich. 351; Mc-Kircher v. Hawley, 16 Johns. (N. Y.) 289; Kimball v. Lockwood, 6 R I. 138; Stedman v. Gassett, I8 Vt. 346: Evans v. Elliott, 9 Adol. & El. 342.
2 B. Mon. 157; White v. Whitney,
3 Meti. (Mass.) 87; Mirick v. Hoppin, 118 Mass. 582; Kimball v. Lockwood, 6 R. I. 138.
80. By some decisions, he is liable to the mortgagee for rent due after the notice, even though he paid it in advance before receiving notice. De Nicholls v. Saunders, L. R. 5 C P. 589; Cook v. Guerra, L. R. 7 C. P. 132; Harris v. Foster. 97 Cal. 292, 33 Am. St. Rep. 187, 32 Pac. 246; Henshaw v. Wells, 28 Tenn. (9 Humph.) 568. Contra. Stone v. Patterson, 19 Pick. (Mass.) 476. See Tiffany, Landlord & Tenant, Sec. 177c.
81. Moss v. Gallimore, 1 Doug-279.
82. Hogsett v. Ellis, 17 Mich. 351; Myers v. White, 1 Rawle, 353
83. Thorn v. Sutherland, 123 N.
(b) Lease after mortgage. After making the mortgage, the mortgagor canot, even though in possi sion, make a lease of the land which will affect any right which the mortgagee may have, by virtue of his legal title, to obtain possession, and the latter may, if entitled to possession, eject the lessee.84 In the case of a lease thus made by the mortgagor, the mortgage previously made is paramount to the title of the lessor as it existed at the time of the lease, and consequently is not regarded as vesting in the mortgagee a title to the reversion to which the rent is incident, and since there is no privity of estate or contract between him and the lessee, he cannot, by action or by distress, proceed for the recovery of rent.85 The tenant under such lease may, however, in order to avoid eviction by the mortgagee, "attorn" to the mortgagee by recognizing him as his landlord, thus creating a new tenancy, and such attornment is a good defense to the claim of the mortgagor for rent.86 Such a new tenancy under the mortgagee has been held not to be sufficiently shown by the fact that the mortgagee has notified the mortgagor's lessee to pay the rent to him, and the latter has not repudiated the demand.87
Y. 236, 25 N. E. 362
84. Keech v. Hall, 1 Doug., 21; Doe d. Roby v. Maisey, 8 Barn & C. 767; Comer v. Sheehan, 74 Ala. 452; Gartside v. Outley, 58 111. 210; Downard v. Goff, 40 Iowa, 597; Russum v. Wanser, 53 Md. 92; Lane v. King, 8 Wend. (N. Y.) 584; Henshaw v. Wells, 9 Humph. (Tenn.) 568; Stedman v. Gassett, 18 Vt. 346; 1 Tiffany, Landlord & Ten. Sec. 73.
85. Teal v. Walker, 111 U. S. 242, 28 L. Ed. 415; Drakford v. Turk, 75 Ala. 339; Bartlett v. Hitchcock, 10 111. App. 87; Massachusetts Hospital Life Ins. Co.
86. Comer v. Sheehan, 74 Ala. 452; Magill v. Hinsdale, 6 Conn. 464; Gartside v. Outley, 58 HI. 210; Sanderson v. Price, 21 N. J. L. 637; Jones v. Clarke, 20 Johns. (N. Y.) 51; Kimball v. Lockwood, 6 R. I. 138. Contra, Hogsett v. Ellis, 17 Mich. 351.
87. Towerson v. Jackson (1891), 2 Q. B. 484, disapproving