1. Where, in a suit seeking cancellation of a mortgage given by the complainant to the defendant, the validity of the mortgage was not determined, the judgment in that suit is not res adjudicata as to the rights of the defendant thereunder. Held, he has no right thereunder.
2. Inasmuch as the validity of the mortgage in that prior suit had not been determined, the judgment of a circuit court, in an action of ejectment brought by the complainant, that defendant was rightfully in possession as a mortgagee, is not res adjudicata as to such possession. Held, defendant has no right to possession under the mortgage.
3. The defendant having been in possession merely as a holdover tenant, he cannot claim title by adverse possession.
4. It having been the obligation of the defendant, under the original agreement of lease to pay the taxes on the property, and he having failed to do so, resulting in tax sales, he cannot claim any rights against the complainant by reason of the assignment to him of the certificates of tax sale.
5. Although there need be no re-entry to change the character of possession from that of lessee to that of mortgagee, yet there must be some act indicating a change of the character of the possession.
6. After final hearing counsel asked that they be permitted to file briefs. This they have neglected to do. Neglect or inactivity of counsel should not withhold from their clients relief to which they are entitled, and these conclusions are accordingly filed without further delay.
PER CURIAM.
The decree appealed from will be affirmed, for the reasons stated in the opinion of Vice-Chancellor Berry.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CAMPBELL, LLOYD, CASE, BODINE, DALY, VAN BUSKIRK, KAYS, DEAR, WELLS, JJ. 12.
For reversal — None.