Willis v. Eastern Trust Banking Company (167 U.S. 76)/Opinion of the Court
The matter in dispute in this suit was the right of present possession of the real estate described in the declaration. Recovery of possession would not extinguish the indebtendess secured by the trust deed, nor bar the right of redemption if the alleged sale were invalid, nor would the title to the land be determined by the litigation.

In respect of procedure in the supreme court of the District, we do not understand the correctness of the observations of Cox, J., in Jennings v. Webb, 20 D. C. 317, to be questioned,-that 'while our rule requires the plaintiff to file a declaration, as in ejectment, that does not convert the proceeding into an action of ejectment at all, in which the plaintiff recovers upon the strength of his title. In this proceeding, unless he establishes the relation of landlord between himself and the defendant, no matter what the form of the declaration is, he is not entitled to recover. * * * It is still a landlord and tenant proceeding.'

Here Johnson, as assignee, held the title of the American Ice Company, and had no greater right than that company had, and these were subordinate to those of the trust company, as trustee in the deed of trust made by the American Ice Company brfore its assignment. The action was sustained by the court of appeals, on the authority of Loring v. Bartlett, 4 App. Cas. D. C. 1, wherein it was held that 'after foreclosure of a deed of trust in which there is a reservation to the grantor of the right to the possession and enjoyment of the premises, and to the receipt of the rents and profits until default made, the purchaser at the sale may maintain a landlord and tenant proceeding against the grantor, under sections 680, 681, and 684, Rev. St. D. C., to obtain possession of the premises. Such a reservation has the effect of a redemise of the premises to the mortgagor or grantor.'

This rule was applied here, as between the mortgagee and the assignee of the mortgagor after condition broken. The trust deed was, in legal effect, a mortgage, with power of sale, and vested the legal title to the mortgaged property in the trust company, subject to be defeated by the payment of the money; and the right of possession would have vested in the trust company from the date of the deed, save for the express provision whereby the ice company was allowed to retain the possession until default. But it was provided that, on default in the payment of the indebtedness as prescribed, it should 'be lawful for the trustee to enter into or upon the premises and property hereby granted, or intended so to be, and to take, possession of the whole or any part thereof.'

Plaintiffs in error, however, insist that the conventional relation of landlord and tenant must exist in order to bring a case within the landlord and tenant act of the district, and that no such relation was created by the deed of trust.

Under the circumstances, we are unable to see how we can entertain jurisdiction. It is true that it has been stipulated that the value of the real estate exceeds $5,000, but the right of possession was the matter in dispute, and there is nothing in the record from which we can conclude that the value of that reaches the jurisdictional amount. The property was rented in January, 1894, for $1,560 per annum for one year; and it is to be assumed that the assignee obtained what it was reasonably worth. The judgment appealed from was rendered in the court of appeals June 3, 1895, and the record was filed in this court on the 22d of July succeeding. It is clear that the matter in dispute in the court of appeals had not the value of $5,000 when the writ of error was sued out. 27 Stat. 434, c. 74, § 8.

In Harris v. Barber, 129 U.S. 366, 9 Sup. Ct. 314, which was a writ of error to reverse the judgment of the supreme court of the District of Columbia quashing a writ of certiorari to a justice of the peace, we had some difficulty in maintaining jurisdiction. But it was sustained on the grounds there stated by Mr. Justice Gray, as follows: 'The petition for the writ of certiorari alleges, upon the oath of the petitioner, that he is in the possession of the premises, under a lease having nearly a year to run, with a privilege of extension for four years more, and that he has expended $15,000 in permanent improvements upon the leased property, of which he will be deprived if the judgment of the justice of the peace, which he alleges to be void for want of jurisdiction, is not set aside by writ of certiorari. The reasonable inference from this is that the possession of the premises, with the right to use these improvements, throughout the lease and the extension thereof, would be worth more than $5,000, showing that the matter in dispute is of sufficient pecuniary value to support the jurisdiction of this court.'

No such inference can be drawn from anything in this record, and the result is that the writ of error must be dismissed. 

Notes