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MATTIS v. ROBINSON.
title in a third person, who has a right thereby to the possession of the premises, and it can be done without any collusion, or bad faith to the lessor the tenant, in order to prevent being expelled by the holder of that title, to whom otherwise he would be rendering himself liable as a trespasser, the tenant may yield the possession and attorn to or take from such holder of the title a new lease, or he may abandon possession. In either case, he will not thereafter be liable to pay rent to the original lessor, and may resist the first lessor's claim to recover possession, by virtue of the new right thereby acquired. But it seems that he ought, in all these cases, to give notice to the lessor of his aban
or holding adverse possession, that he may not take advantage of the confidence reposed in him by the lessor in putting bim into possession of the estate, to deprive him
any rights which the lessor had thereby yielded to his keeping. If, therefore, he were to purchase a better title than that of his landlord, he ought, nevertheless, to surl'ender possession to his lessor before he seeks to avail himself of his new title against his landlord.—1 Wash. Real Prop. 361; Browser v. Browser, 10 Humph. 49 ; Lawrence V. Miller, 1 Sandf. 516.
Mattis having by notice advised his lessors of the purchase of the mortgage by him, and disclaimed holding any
as their tenant, it is claimed by his counsel that the tenancy thereby ceased, and he was at liberty to assert his mortgage against them without delivering up possession of the premises
. In support of this the case of Pierce v. Brown, 24 Vt. 165 is relied upon.
It is true that that case goes to the full extent claimed. The court there says in a case where the facts are quite similar to those in the case under consideration here, “We have no doubt that if the plaintiff first entered into possession of these premises under the mortgagor, as his tenant, still, he may repudiate the tenancy by purchasing the mortgage as being an older
MATTIS V. ROBINSON.
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 property, 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.”
I concede that when in good faith the purchase is made to protect the lessee in his possession as against the mortgagee, he may purchase the mortgage and allege it against his lessors; but to the extent that a tenant should be warranted like any third person in buying in titles, without surrendering possession of the lands, asserting them against his landlord, I must dissent from that case. It is in violation of the policy of the law and not sustained by the authorities. In support of its conclusion the Court in that case cite that of Greene v. Munson, 9 Vt. R. 37, where it is laid down that " where 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 limi. tations begins to run." This may be true, but still not warrant the conclusion announced above. The tenant by such notice has committed such dissension as to warrant the lessor to treat him as a trespasser, if he so elect.—3 Peters, 49. For the purpose of fixing the period from which the statute of limitations would run, such holding has been regarded as adverse. But for other purposes the principle of repudiating a tenancy without first surrendering possession, does not apply. One party cannot of his own volition terminate a contract while he continues in the use and occupation of that for which he promised to make compensation. Mattis having purchased the mortgage while he was in as a tenant, it must be presumed he did it for the only purpose permitted by the law to protect his possession.
What he may have paid for the mortgage (when the
MATTIS V. ROBINSON.
amount does not exceed what was justly due thereon) with lawful interest thereon should only be allowed him. The court below erred, therefore, in allowing Mattis to allege the mortgage against his lessors for its face and the exhorbitant rate of sixty per cent. interest while he purchased it at the legal rate, ten per cent.
An account should have been taken and the rents allowed down to the time of the sale of the mortgaged premises.
For these reasons the decree should be reversed and the cuse remitted to the court below, and a new decree entered in accordance with the views expressed above.
THE CITY OF BROWNVILLE 0. MIDDLETON.
The City of Brownville v. Middleton. PRACTICE: A petition in error must be filed with the transcript of the record
of the District Court, and before the summons in error is issued, in order to give the Supreme Court jurisdiction.
The District Court for Nemaha county had rendered judgment against the plaintiff. It caused to be filed with the clerk of the Supreme Court a transcript of the record of the District Court, and also caused a summons in error to be issued and served. But it did not file any petition in error.
Section 584 of the Code provides that “The proceedings to obtain such reversal, vacation or modification, (of a judg. ment,) shall be by petition, to be entitled petition-in-error, filed in a court having power to make such reversal, vacation or modification ; setting forth the errors complained of, and thereupon a summons shall issue and be served," &c.
Section 586 provides, "that the plaintiff shall file with his petition a transcript of the proceedings,” &c.
J. M. Woolworth, for the city, moved for leave to file a petition, now, as of the date of the filing of the transcript.
Redick & Briggs, for Middleton, moved to dismiss the summons in error.
The Court, by LAKE, J., held that the Supreme Court obtained jurisdiction to review a judgment at law rendered by the District Court, only by the petition in error. That must be filed with the transcript, and before the summous issued. Until it was filed, there was no authority for issuing the summons, and the writ was void. It could not be filed afterwards, so as to retain the summons in error which had already been issued and served. The motion to file the petition now as of the date of filing the transcript is denied, and the motion to dismiss the summons is sustained.
THE PEOPLE v. LOUGHRIDGE.
The People v. Loughridge.
LABOENY. The bringing into this State, by the thief, of goods stolen in
another State, is not larceny.
This was a writ of error to the District Court for Doug. las county. The facts are fully stated in the opinion.
J. W. Savage, for Loughridge.
G. W. Doan. District Attorney, contra.
The plaintiff in error, Charles Loughridge was tried at the October term of the District Court for Douglas county, upon an indictment charging that, on the 30th day of August, 1867, in the county of Douglas, State of Nebraska, he did steal, &c., a pocketbook and other property to the amount of about five hundred dollars. The evidence shows that the property in question was taken from one Hanson, at St. Johns, in the State of Iowa, and found in the possession of Loughridge a few days subsequently at Omaha, in Douglas county, in this State. The judge, in effect charged the jury that if they found that the prisoner feloniously took the property in the State of Iowa, and escaped into this State, and was found in possession of it, in Douglas county, they might find him guilty under the indictment. The jury returned a verdict of guilty. Motions were made for a new trial and in arrest of judg. meut, which were overruled ; and the case is brought here on alleged error lying chiefly in the charge to the jury. Whether an indictment for larceny can be supported, where property is originally stolen in one of the United States, and carried into another State, where the thief is arrested and prosecuted, is a question upon which the cases are in