McDermott v. Burke

Citations

• 16 Cal. 580

Syllabus

<p>Query: Whether a leasehold estate for a term of years is real' property in such sense that a judgment docketed becomes a lien thereon.</p> <p>A mortgagor cannot make a lease which will bind his mortgagee, where the lessee, at the time, has actual or constructive notice of the mortgage.</p> <p>The interest of the lessee, in such case, depends for its duration—except as limited by the terms of the lease—upon the enforcement of the mortgage. So long as the mortgage remains unenforced, the lease is valid against the mortgagor, and, in this State, against the mortgagee; but with its enforcement, the leasehold interest is determined, even though the lessee be not made party to the foreclosure suit.</p> <p>There is no privity of contract or estate between the purchaser upon the decree of sale on foreclosure and the tenant of the mortgagor. The purchaser may treat the tenant as an occupant without right, and maintain ejectment'for the premises—except where the purchaser is precluded, by his acts or declarations, from thus taking him.</p> <p>The purchaser cannot, for the want of privity, count upon the lease, and sue for the rent or the value of the use and occupation. The relation between the purchaser and tenant is that of owner and trespasser, until some agreement, expressed or implied, is made between them with reference to the occupation. The tenant is not bound to attorn to the purchaser, nor is the latter bound to accept the attornment, if offered, unless the acts or declarations of the purchaser, anterior to the purchase, qualify the subsequent relation of the parties, or the rights springing from it.</p> <p>There are cases where the purchaser on a sale under a decree of foreclosure, would be estopped from treating the tenant of the mortgagor as a trespasser—as, for instance, when the lease was taken upon the encouragement of the mortgagee, and the purchaser was cognizant of the fact at the time of his purchase.</p> <p>Only those who are beneficially interested in