86 N.J.L. 615 | N.J. | 1914
The opinion of the court was delivered by
This is the plaintiff’s appeal from a judgment for the defendant. The judgment was entered in the court below after it had been stipulated that the facts set forth in the pleadings were to be taken as true.
From such pleadings the following facts appear:
The plaintiff, Ernest C. Hinck, brought suit on a lease, in writing, wherein he is the landlord, and the defendant, Milton L. Cohn, is the tenant, to recover the rent for the month of September, 1913, payable in advance. Prior to the execution and delivery of such lease Hinck had executed and delivered to Athenia T. Simpson a mortgage covering the demised premises. During the term of the lease Hinck defaulted on the mortgage, and Simpson instituted foreclosure proceedings. On June 27th, 1913, a decree was entered therein whereby Hinck was debarred and foreclosed of and from all equity of redemption in the demised premises. On August 26th, 1913, the mortgaged premises were lawfully sold by the sheriff of the county of Essex to the inortgagee, Athenia T. Simpson, by virtue of an execution issued out of the Court of Chancery in such foreclosure proceedings. On September 2d, 1913, Cohn paid the rent for September to Athenia T. Simpson. On September 6th, 1913, the sale was duly confirmed by the Court of Chancery. On September 17th, 1913, this suit was begun, and on September 26th, 1913, the deed was delivered to the purchaser.
We have now to consider whelhcr, in such circumstances, the attornment and payment of rent by the tenant to Simpson, the mortgagee, constitutes a defence to this action.
We are of opinion that the court below properly held that it did.
It appears That the lease declared upon was made after the
It is true that it is staled in the answer that the defendant paid the rent “to the said Atbenia T. Simpson, the owner of the reversion of said demised premises.” But we think that it is immaterial on this appeal that Simpson was therein described as “the owner of the reversion,” since it also appears therein that she was the mortgagee of the defaulted mortgage and so had a status which-made attornment and payment to her proper. As soon as the tenant had rightfully attorned to and paid the mortgagee, the right of the mortgagor to collect the rent ceased. Of course, the reason is that if the tenant rightfully attorned to the mortgagee it amounted to an eviction by paramount title. Since the mortgagor is the plaintiff suing for the rent, he must recover by his own right, and not by the weakness of the claim of the purchaser at the sheriff’s sale. If the mortgagor had no right to collect the rent, it
The judgment below will be affirmed, with costs.
For affirmance — The Chancellor, Garrison, Swayze, Trenci-iard, Bergen, Black, Bogert, Heppenheimer, Williams, JJ. 9.
For reversal — Ti-ie Chief Justice, Parker, Minturn, Kalisoi-i, Vredenburgh, Teehune, JJ. 6.