56 Minn. 166 | Minn. | 1894
The objection made to testimony, or rather the motion to strike out testimony, was on the ground that the defendant could not, under the evidence, be liable for the injury to plaintiff’s property. The consideration of the question of defendant’s liability will determine the question of the propriety of the testimony.
The defendant’s liability depends on whether it had such possession of the premises as to be responsible for the continuance, after notice, of the nuisance created by Clementson, the owner and mortgagor, at the time he constructed the building. In other words, was its relation to the premises such that it is to be deemed a continuer of the nuisance?
As a general rule, the occupier of premises, who has such control of them as to give the right to abate the nuisance, is a continuer of it, if he do not, after notice, abate it. Such is the case with a grantee or tenant of premises on which the grantor or landlord has created a nuisance. Of course, in the case of a tenant, to make him responsible, his occupation and control must extend to that part of the premises in which the nuisance exists. So, if rooms in a
The relation of the defendant to the premises depends on the fact that it was a mortgagee, and on the subsequent contract between it and the mortgagor. That contract was not, as defendant contends, a mere power to rent the premises and collect the rents. So far as it had the effect of a power, it was a power coupled with an interest, for it was intended as further security. Nor did it create the relation of landlord and tenant. It reserved no rent, and created none of the rights and duties existing between landlord and tenant. It assumed to assign and transfer to defendant all rents and profits belonging to the premises, together with all leases, of and agreements, or contracts relating to the premises, and the right to collect all rents due or to become due thereunder; giving the right to enter upon the premises, and to rent the same, or any part thereof, which is now, or which may hereafter become, unoccupied.” The defendant covenanted by it to use reasonable diligence and efforts to collect all rents due or to become due, and to rent, so far as it could, any va mnt portions of the premises, at reasonable rates, to tenants of good class and character, and, after deducting five per cent, for collecting, to apply the remainder of the rents (1) to keep the building insured; (2) to pay for necessary repairs; (3) to pay taxes and assessments; (4) to paying the interest due or to become due on the mortgage before the termination of the agreement, and $400 of the' principal of the mortgage debt due at the date of the contract. The agreement was to terminate whenever the interest and $400 were paid as thus provided, or at any time when the mortgagor should pay the $400 and the interest due, and any money for repairs or insurance paid by defendant, over and above rents collected applicable thereto. There were some minor stipulations in the contract, which, however, did not change in any way its character and-effect.
The rights and duties thus specified are not, except in one particular, essentially different from those the law would vest or impose in the case of a mortgagee in possession. The particular in which it differs from an ordinary case of the kind is in the right reserved
A mortgagee .cannot take possession under his mortgage alone. “The assent, express or implied, of the mortgagor, that the mortgagee may take possession under or because of his mortgage, is of the essence of a mortgagee in possession.” Rogers v. Benton, 39 Minn. 39, (38 N. W. 765.) And when the mortgagee so takes possession, with such consent, he must be a mortgagee in possession. It cannot change the character of his possession that consent to his taking it was given by formal contract, provided the contract was made because of the mortgage, and provided the possession consented to is not, while it is to continue, materially different from that of a mortgagee in possession.
A reading of the contract leaves no room to doubt that, but for the mortgage, it never would have been made, or that the possession it authorized of turned over to defendant was with reference to the mortgage, and because of it. It put the defendant fully in possession of the entire premises; in as complete possession as any landlord can have, who has rented different parts of his building to different tenants. No tenant had possession and control of the roof, and the defendant might therefore be the continuer of a nuisance caused by it. If it were necessary that the contract. give defendant authority to abate a nuisance in it, the authority given to keep the building “in such condition as landlords usually keep buildings of the class and character of the building situated on said premises” would be sufficient.
The defendant contends that the evidence furnished no means by which the jury could determine how much of the damage to plaintiff’s building was caused before, and how much after, the notice. But the testimony of the plaintiff was that the damage was all done after, and none before, the notice; and, if the jury believed that, they could render a verdict for the whole damage done. It is true that the plaintiff testified his wall and oven had settled before he gave defendant notice. But we suppose the wall of a building may set-
Order affirmed.
(Opinion published 57 N. W. Rep. 309.)
