On appeal from the District Court of the city of Camden.
For the respondent, Mark Marritz (Patrick H. Harding, of counsel).
For the appellant William James, Edwin Field Crane (Richardson A. Roberts, of counsel).
Before Justices Trenchard, Case and Brogan.
The opinion of the court was delivered by
BROGAN, J. The plaintiff and the defendant occupy the relationship of landlord and tenant, the defendant being the tenant. The premises, when rented, were encumbered by a mortgage which thereafter became in default. The mortgagee served notice upon the tenant, directing that he pay rent thereafter to the mortgagee. The tenant did pay rent to the mortgagee. Later a demand was made upon him by the plaintiff owner (mortgagor) for rent for the same period which the tenant refused to pay, stating that he had paid the rent for that particular month to the mortgagee. Thereupon the owner brings this suit.
These facts were stipulated in open court between the respective parties and the court gave judgment for the plaintiff, owner of the property.
It would perhaps have been better had the mortgage itself been printed as an exhibit in the state of the case, but, not being benefited by that exhibit, the case must be determined on the issues presented.
The defendant tenant appeals on the ground that the court erred as a matter of law in giving judgment in favor of the plaintiff under these circumstances.
There are two methods by which a mortgagee may, after default in his mortgage, acquire the right to collect rents.
First, by an appropriate action wherein the rents are collected for him through a receiver appointed by a competent court and, secondly, by taking possession of the mortgaged premises after default on the part of the mortgagor. Cf. Bermes v. Kelly, 108 N.J. Eq. 289; 154 A. 860; Freedman's Saving Trust Co. v. Shepherd, 127 U.S. 494.
Obviously, the first method was not pursued herein and need not concern us. The question is whether, under the circumstances, the mortgagee had the right to collect the rent or, to put it ...