Election between inconsistent rights bars mesne profits claim after mortgage redemption where mortgagor treated tenant as his own tenant.

On redemption of a usufructuary mortgage, the mortgagor is ordinarily entitled to actual delivery of possession, not merely a notice to the mortgagee's tenant to attorn, unless the tenant in fact attorns and the mortgagor accepts that attornment. If the mortgagor instead initiates rent control proceedings against the tenant on the footing that the tenant is his own tenant, that conduct amounts to an unequivocal election between inconsistent rights. Once made with full knowledge, the election is binding and cannot be withdrawn. The mortgagor is therefore precluded by election and estoppel from later treating the mortgagee as continuing in possession for the purpose of claiming mesne profits.

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Issues: Whether, after redemption of a usufructuary mortgage, the mortgagor could claim mesne profits from the mortgagee when the mortgagor had initiated eviction proceedings against the tenant inducted by the mortgagee and thereby elected to treat that tenant as his own tenant.

Analysis: A mortgagor is ordinarily entitled, on redemption, to actual delivery of possession and not merely a notice to the mortgagee's tenant to attorn, unless the tenant actually attorns and the mortgagor accepts such attornment. Where the mortgagor instead proceeds against the tenant in rent control proceedings on the footing that the tenant is his tenant, that conduct amounts to an unequivocal election between inconsistent rights. Under the principle of election, once such a choice is made with full knowledge, it cannot be retracted, and the mortgagor cannot later treat the mortgagee as continuing in possession for the purpose of claiming mesne profits. The tenant's refusal to attorn does not alter the legal effect of the mortgagor's own conduct.

Conclusion: The mortgagor was precluded by election and estoppel from claiming mesne profits against the mortgagee, and the dismissal of that claim was .

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