Opinion
Opinion filed June 9, 1932.
1. MORTGAGES — extent of rights that lessee may acquire under lease from mortgagor. A mortgagor or his grantee cannot make a lease of mortgaged premises which will give the lessee a greater right than the mortgagor possesses, and that will interfere with the right of the mortgagee to enter for condition broken.
2. FORECLOSURE OF MORTGAGES — duty of lessee to pay rent to receiver upon remaining in possession. If a person accepts a lease of mortgaged premises and a receiver is appointed in foreclosure proceedings, the lessee must pay rent to the receiver from the day of his appointment or vacate the premises, even if he has paid the mortgagor rent in advance.
3. MORTGAGES — lessee not entitled to lien for rent paid mortgagor in advance as against mortgagee. A lessee has no lien for rent paid in advance to a mortgagor that is superior to the lien of a mortgage that was of record at the time the lease was secured.
4. EQUITY — availability of defense not stated in answer but appearing in evidence. A defendant cannot avail himself of any defense not stated in his answer even though it appears in the evidence.
5. FORECLOSURE OF MORTGAGES — when defense of priority of rights of lessee as against second mortgage not available. A defense by a lessee as defendant in foreclosure proceedings that his right to possession is superior to any rights of the mortgagee does not raise the question of whether the lessee's right to possession is superior to the right of the mortgagee to possession under a second mortgage where it appears that complainant's rights under a first mortgage are superior to the rights of the lessee, and on review such claim may not be availed of.
6. SAVING QUESTIONS FOR REVIEW — when questions in foreclosure proceedings not reviewable because not presented in trial court. A lessee as a defendant in foreclosure proceedings may not urge error in respect to a third mortgage held by another defendant when he has made no reference whatever thereto in his answer; nor may he contend that the court erred in not decreeing that the premises for which he had no lease be sold first when he failed to raise the question by his answer or by his objections and exceptions to the master's report.
7. APPEAL AND ERROR — when admission of evidence not reviewable in absence of assignment of error. Whether the master erred in admitting certain evidence in a foreclosure proceeding is not open for consideration in the absence of an assignment of error in regard to the question.
Appeal by defendant from the Circuit Court of St. Clair county; the Hon. JESSE R. BROWN, Judge, presiding. Heard in this court at the February term, 1932. Affirmed. Opinion filed June 9, 1932.
R. E. COSTELLO, E. H. SCHWARZENBACH and JOSIAH WHITNEL, for appellant.
TURNER HOLDER and F. J. TECKLENBURG, for appellee.
Belleville Savings Bank, trustee, filed a bill to foreclose two mortgages on the same pieces of real estate, and made appellant and others defendants thereto. Appellant answered denying that such mortgages "are superior liens upon the premises to that of said defendant," and averring that he is in possession of the mortgaged premises as tenant and has paid the owner of the equity of redemption rent in advance to the amount of $12,000 for which he is entitled to credit. The fair purport of the answer in that regard is that appellant had paid rent in advance for which he is entitled to a lien that is superior to the lien of the mortgages.
One of the mortgages sought to be foreclosed was executed and delivered on May 3, 1928, and was recorded two days later. The lease under which appellant claims is dated May 1, 1929. A mortgagor, or his grantee, cannot make a lease of mortgaged premises which will give the lessee a greater right than the mortgagor possesses, and that will interfere with the right of the mortgagee to enter for condition broken. Gartside v. Outlay, 58 Ill. 210, 211; Taylor v. Adams, 115 Ill. 570.
If a person accepts a lease of mortgaged premises and a receiver is appointed in foreclosure proceedings, the lessee must pay rent to the receiver from the day of his appointment or vacate the premises. If he has paid the mortgagor rent in advance he will be required to pay rent to the receiver from the date of his appointment if he remains in possession. Rohrer v. Deatherage, 336 Ill. 450; McDevitt v. Sullivan, 8 Cal. 592; Hatch v. Sykes, 64 Miss. 307, 1 So. 248; Olive v. Levy, 194 N.Y. S. 88. In the case at bar a receiver was appointed. We know of no law that would give appellant a lien for rent paid in advance that would be superior to the lien of a mortgage that was of record at the time he secured his lease. For that reason the amount of the rent paid in advance was wholly immaterial.
The only other defense set up in appellant's answer is that he is a lessee in possession of a portion of the premises and that his right to possession is superior to any rights of the complainant. We have shown that his right to possession under the lease was not superior to the right of the complainant under the mortgage of May 3, 1928. If appellant thought his right to possession was superior to the rights of complainant under its second mortgage, he should have made it an issue instead of averring that it was superior to any rights of the complainant. A defendant cannot avail himself of any defense not stated in his answer even though it appears in the evidence. Millard v. Millard, 221 Ill. 86.
In his objections and exceptions to the master's report appellant averred that the master erred in finding that complainant's mortgages are superior to his claim when all the evidence shows that the mortgages are second to his lien. It is apparent that the claim referred to is his claim for rent for which he had no lien. He did not specifically raise the question before the master or the court as to whether his right of possession under his lease was superior to the lien of complainant's second mortgage and is in no position to urge it in this court. Arthur Eidman, trustee, was a defendant to the bill and set up in his answer that he held a third mortgage on the same premises. Appellant made no reference whatever to that mortgage in his answer and is in no position to urge error with reference thereto.
Appellant argues that the court erred in not decreeing that the premises for which he has no lease should be first sold. That question was not raised by his answer or by his objections and exceptions to the master's report. He also argues that the master erred in admitting certain evidence but having assigned no error in that regard the question is not open for our consideration. Finding no reversible error the decree is affirmed.
Affirmed.