Mattice v. Lord.

trial of this action, obtained a verdict, in an action wherein Lewis Lord was defendant, for the possession of the premises, by reason of the forfeiture incurred by the non-payment of the rent which he claimed to recover of the defendant in this action. The court then charged and directed the jury to find a verdict for the defendant; to which the plaintiff's counsel excepted. The plaintiff's counsel requested the court to charge, that the verdict in the other case was in no way a bar to the recovery in this action for the rent due prior to the accruing of the rent demanded; but the court refused so to charge, and instructed the jury that the verdict in the other action, being the enforcement of a forfeiture under the letting, was an absolute bar to any recovery for rent, in this suit; to which decision and charge the plaintiff's counsel excepted. The jury found a verdict for the defendant.

The plaintiff moved for a new trial, upon a bill of exceptions.

R. W. Peckham, for the plaintiff, cited Hinsdale v. White, (6 Hill, 507,) and Jackson v. Allen, (3, Cowen, 220.)

A. Becker, for the defendant.

By the Court, BALCOM, J. The principal question in this case is, whether the bringing of the action by the plaintiff to recover possession of the demised premises, by reason of the non-payment of rent for the space of twenty days next after it became due, and the obtaining of a verdict in that action, for the possession of the premises, is a bar to this action for such rent.

The lessee covenanted, that if the rent should be in arrear or unpaid for the space of twenty days next after the day specified for its payment, that then the leases and the estates granted should cease, determine, and be and become absolutely void and of none effect; and thereupon it should be lawful for the lessor, his heirs and assigns, to re-enter and have again the demised premises as his and their former es

Mattice v. Lord.

tates, any thing in the leases to the contrary notwithstanding. The plaintiff obtained the verdict, "that he recover the possession of the premises" by reason of the non-payment of the rent that became due on the first day of January, 1853. The authorities show that the plaintiff may recover the rents reserved for the premises up to that day. In 3 Salkeld, page 3, it is said: "Lease to W. R. for life, rendering rent at Michaelmas, with a clause of re-entry for non-payment. The rent in arrear, and afterwards the lessor brought an action for the rent. Adjudged, that notwithstanding this action he (the lessor) might still enter for a breach of the condition, for the action for the rent did not affirm the lease, because it shall be intended to be brought as for a duty upon the contract." (See 2 Platt on Leases, 470.) In Hartshorne v. Watson, (4 Bing. N. C. 178; 33 Eng. Com. Law Rep. 312,) the lease contained a provision, that if the rent should be in arrear for fourteen days, it should be lawful for the lessor to re-enter, and the premises to have again, as if the indenture. had never been made. The lessee assigned the premises, and on six quarters' rent falling in arrear, the lessor re-entered,. and the assignee contended that by the re-entry the lease must be considered as never having had any existence, and, consequently, that the lessor had no right of action; but the court held the proper construction of the proviso to be, that from the time of re-entry the lessor should have the land, as if the indenture had not been made, and that the assignee was liable. "It would be singular (said Tindal, C. J.) to hold, that to an action for rent, on an instrument under seal, the lessee or assignee might plead non-payment, but that the lessor entered for non-payment: in other words, might deprive the lessor of his rent, because he declined to submit to any further loss." The above statement of the case of Hartshorne v. Watson is contained in Platt's Treatise on Leases, (vol. 2, pp. 331, 332,) and it is fully sustained by the case as reported at length, which I have examined. (See Taylor's Landlord and Tenant, 60.)

Mattice v. Lord.

The leases in the case at bar became void as to the rent reserved, only from the first day of January, 1853, by the enforcement of the forfeiture caused by the neglect to pay the rent which became due on that day, for the space of the next twenty days, and the demand of it at the proper time in such month. (Doe v. Paul, 3 Car. & Payne, 613. Taylor's Landlord and Ten. 60. 2 Platt on Leases, 338.) Possession of the premises was lawfully withheld from the plaintiff prior to the first day of January, 1853, but unlawfully subsequent to that day. He might have recovered damages for such unlawful withholding, in the action for the recovery of the possession of the premises, if the complaint therein had been framed with that view. (Code, § 167, sub. 5.) And he may yet recover such damages, by action. (Id. § 455. 2 R. S. 310, 311. Holmes v. Davis, 21 Barb. 265.) These views are sustained by those expressed in Hinsdale v. White, (6 Hill, 507.) The court in that case said: "The lease is indeed void from the day of the forfeiture, but is valid for the previous time. Compensation for possession continued after that time must be recovered by an action for mesne profits." And the decision in that case was fully approved by the court for the correction of errors in McKeon v. Whitney, (3 Denio, 452.)

The foregoing views are sustained by other authorities; but I need not cite them; and it is unnecessary to pass upon any other question in the case. The verdict in the action must be set aside, and a new trial granted; costs to abide the event.

Decision accordingly.

[TOMPKINS GENERAL TERM, November 15, 1859. Mason, Balcom and Campbell, Justices.]

GAGE VS. SIMON L. and JOHN H. BREWSTER.

A junior mortgagee, coming to redeem mortgaged premises from a sale under a decree of foreclosure in a suit upon a prior mortgage, must pay, not only the amount of principal and interest due upon the prior mortgage, but the costs of the foreclosure suit; notwithstanding he was made a party to such suit.

N the 9th of January, 1855, James Thompson was seised

On the oth of January, 1 of 1 and in the town of Brighton,

a

in the county of Monroe, and on that day executed and delivered to Amos O. Miller a mortgage thereon, to secure the payment of $400, in four annual payments. On the 29th of February, 1856, Thomas Ryder, being seised in fee of the same premises, executed a mortgage thereon, with other premises, to the plaintiff, to secure the payment of $700 in one year; and on the 24th of June, 1856, executed another mortgage to the plaintiff to secure the payment of $500, with interest, in eighteen months. These last mentioned mortgages were duly recorded the day they were dated, respectively. On the 20th of March, 1858, a foreclosure of the two last mortgages was commenced, Thomas Ryder and Charlotte his wife being made defendants, and on the 15th of April the usual judgment of foreclosure was entered in the action. On the 17th of June, 1858, the premises were sold on this judgment, and the plaintiff became the purchaser. On the 24th of April, 1858, the defendants having become the owners of the first mentioned mortgage, commenced a foreclosure thereof by an action in this court, and on the 6th of July, 1858, the usual judgment of foreclosure was entered. To this action the plaintiff was not made a party. The defendants proceeded to advertise the property for sale, when the plaintiff accidentally discovering that the defendants' mortgage was a lien on a portion of his own land, paid the defendants the amount of their mortgage, principal and interest, under an agreement that the money so paid should apply on the judgment, first, in payment of costs, and the balance on the mortgage debt, unless the court should decide, in an action to be brought to

Gage v. Brewster.

redeem, that the plaintiff was entitled to redeem the premises without paying the costs of the foreclosure; in case such decision should be made, then the whole sum should be applied on the mortgage debt. The plaintiff then commenced this action, praying that the defendants be adjudged to discharge the said mortgage of record. The judge before whom the cause was tried at the circuit, decided as matter of law upon the facts found, that the plaintiff was not entitled to redeem the premises from the lien of the mortgage held by the defendants, and to have the same discharged upon paying the amount unpaid thereon, with interest, unless he also paid the costs of the said defendants in the action brought by them to foreclose the same. He therefore dismissed the plaintiff's complaint, with costs, and the plaintiff appealed.

W. F. Cogswell, for the appellant.

J. C. Cochrane, for the respondents.

By the Court, T. R. STRONG, J. The plaintiff derives title to the premises in question through the foreclosure of two mortgages, executed by Thomas Ryder to him, and a purchase by him of the premises at a sale thereof in the foreclosure suit. Ryder received a conveyance of the title expressly subject to the payment of the defendants' mortgage. The premises thereby became the primary fund for the payment of the mortgage debt to the defendants, and Thompson, the mortgagor in the defendants' mortgage, who executed a bond in connection with the mortgage, a mere surety. This was the state of things at the time of the mortgage and the sale to the plaintiff, and it continued afterwards.

Now the defendants, in the suit for the foreclosure of their mortgage, have obtained a judgment of foreclosure and sale, with the usual provision, as I understand, making Thompson personally liable for any deficiency, upon a sale of the premises,