Den ex dem. Nathan v. Fen

6 N.J.L. 583

Opinion

Per Curiam.

If the lessor of the plaintiff thinks proper, he may bring into court the money due on the mortgage the next term, or in the mean time- discharge the mortgage; ■otherwise, the mortgagees may be admitted to defend.

Rule nisi.

Note. —The counsel in Eairclaim v. Shamtitle, 3 Bur. 1293, said, the landlord claiming to bo admitted to defend, must have actually received rent, “ except in cases of mortgages after forfeiture, and the like,” which doctrine is further stated, p. 1299, Runnington 68, (edit, of 1792) says, generally, “ it should seem that a mortgagee who is out of possession, may be admitted to defend on the tenant’s refusal; though, in one case, it is said to have been otherwise determined.” See Barnes 193-4. In Doe ex dem., Tilyard v. Cooper, 8 T. C. 645, the court permitted a mortgagee to be made defendant in an ejectment with the mortgagor. 2 Sellon’s Pr. 1067.

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In note 'i. to Mr. Adams’ Treatise on Ejectment, p. 231, he seems to consider this circumstance of the mortgagee’s having previously received rent, immaterial. And in Coleman's ease, Hese 56, it is said: “ A person may be admitted to defend as landlord, between whom and the defendant a priority of interest exists, although he does not receive rents, which is not the true test.” In Jackson v. Babcock, 17 John. 112, it is <lecidcd, that the assignee of a mortgage may be let in to defend as landlord.