30 N.J. Eq. 601 | New York Court of Chancery | 1879
The object of this proceeding is to procure an adjudication whether or not the complainant has had possession of the mortgaged premises as mortgagee, and is therefore liable for rents and profits, and also for waste alleged to have been committed. A right to an account on both
The questions upon which the opinion of the court is asked, are presented informally, and as incidents of the resale, and, by desire of counsel, are to be decided on their merits, regardless of form.
The legal rules to be applied in determining whether the claim made against the complainant should be allowed or not, are well settled. A mortgagee who takes possession of the lands mortgaged to him, either by himself or by a
Applying these rules to the facts of this case, it is impossible, I think, to suggest any rational theory upon which the complainant can be held. He never had either actual or constructive possession of the mortgaged premises ’; he never authorized his vendee to take possession, nor, so far as appears, did he know that his vendee intended to do so. On the contrary, it is shown that his vendee took possession by permission of the owner of the equity of redemption. His authority to enter was derived from the assignee in bankruptcy, and not from the complainant. Unless his contract of purchase provided that a right to possession should precede title, the vendee would have no right to enter into possession until he got title. It is not pretended that the contract contained such a provision. The complainant is not liable for rents and profits.
The claim for damages for waste is equally groundless. If waste was committed the complainant did not commit it; nor did he put in possession the person who did commit it; nor is he, by reason of any act done or omitted, in any way responsible for the spoiler’s acts.
The defendant’s application must be denied.