Security Realty Co. v. Kost

YORK, J.

The plaintiff leased certain real property to defendant Mary Kost, who thereafter assigned her lease to defendants Egley. Together with the assignment of the lease Mary Kost sold and transferred to the Egleys certain personal property constituting the furniture, furnishings, etc., in the leased premises. This personal property was subject to a chattel mortgage which had been executed by Kost to the plaintiff to secure the payment of each and every of the installments of rent provided for in the lease. A default having occurred in payment of rent due, the lessor gave notice to defendants Egley to pay the unpaid balance of rent then due within three days from the date of the notice or deliver up possession of the premises. Said defendants thereupon vacated the premises without paying the rent demanded, but they first removed from said premises the mortgaged property. This action was brought by lessor, who was also the mortgagee, to recover possession of the mortgaged property. By claim and delivery proceedings the personal property was delivered to the plaintiff and was in possession of the plaintiff when judgment was entered herein. Judgment was entered in favor of the plaintiff that plaintiff retain possession of the mortgaged property and also recover the amount of expenses incurred in obtaining such possession. From this judgment defendants Egley appeal.

Appellants’ first and second points are that the three-day notice to quit, by reason of the fact that the appellants immediately quit the premises and tendered payment of rent computed to that time, constituted a termination of the tenancy and cancellation of the lease, and, therefore, a satisfaction of the chattel mortgage given to secure the payments under the lease.

Their third point is that the tender of a check made by the tenant to the landlord for rent up to the date when the premises were surrendered was full payment of any rent due or to become due.

The fourth point is that it was material and necessary for the trial court to find when or whether the lease was ter

[628]

minated, and how much, if anything, was due the plaintiff on the lease for which the mortgaged personal property was security, which personal property was sued for in this action, which is an action for the possession of the personal property only.