Jackson ex dem. Clark v. Babcock

17 Johns. 112

Opinion

Per Curiam,

It was decided in Wisner v. Wilcocks, (Col. Cases, 56.) that it was the privity of interest, and not the receiving of rents, which was the true test, as to the admission of a person to defend as landlord; and that a mortgagee out of possession might be let in to defend, in an action of ejectment brought to recover the premises. There is the same connection between the assignee of the mortgagee, and the tenant, as between the mortgagee himself and the tenant. We see no reason, therefore, why this motion ought not to be granted; so far, at least, as to let in Ballow, as landlord, to defend on the usual terms, on his stipulating to give no evidence of any title derived from his purchase of a prior judgment, but of the title only acquired under the mortgage.

Rule accordingly.