Kimball v. Pike

18 N.H. 419

Opinion

Parker, C. J.

The general principle is that rent reserved, and not due, is incident to the reversion, and passes with it to the assignee. 2 N. H. Rep. 454, York v. Jones; 16 Mass. 1, Keay v. Goodwin; 7 Pet. 596, Scott v. Lunt; 8 Cowen 206, 209, Demarest v. Willard; 3 Penrose & Watts (Penn.) 406, Johnson v. Smith. And the rule is the same where the assignment of the reversion is by mortgage instead of being by an absolute conveyance. Doug. 270, Moss v. Gallimore; 1 D. & E. 383, Birch v. Wright; 3 Met. 76, Burden v. Thayer; 15 Mass. 269, Fitchburg Man. Co. v. Melvin; 1 Vt. 457, Babcock v. Kennedy. Wheeler v. Branscombe, 5 Adolph. & Ellis. 373, appears to have been decided upon the special circumstances of the ease. Mr. Justice Coleridge said, “The documents show the intention of the parties not to have been to dispose of the reversion, but to make the mortgagee the agent or bailiff of the mortgagor, with authority to receive the rents.”

Upon these authorities there could be no question in this case, had it not been for the assignment of the lease by the lessor. As against the rights of the lessor, who is also the mortgagor, the right of the mortgagee was complete at the time of the execution of the mortgage. 1 Met. 494, Welch v. Adams. There might have been a reservation of the rent. Co. Litt. 143.

But it is very apparent that no subsequent assignment of the lease can take away this right of the mortgagee. The rule in relation to negotiable securities, transferred before they are payable, does not apply. 19 Pick. 476, Stone v. Patterson; 2 Hill 274, Willard v. Tillman.

It may well be doubted whether, if the assignment of the lease had occurred before the making of the mortgage, it would have made any difference, there being no reservation of the rent in the mortgage, and no notice of the lease to the mortgagee.

Verdict set aside.