Johnson v. Dopkins
Before: Heydenfeldt
Synopsis
The purchaser of a mortgage is subrogated to the rights of the mortgagee.
Defendant set up title in herself as assignee of the mortgagee, and as lessee of the mortgagor. The plaintiff claims as purchaser at sheriff’s sale on a judgment against the mortgagor. The estate in controversy was leasehold, and the judgment of the plaintiff was obtained after the date of the lease : Held, that the plaintiff took but the equity of redemption of the mortgagor, subject to the lease of defendants; and held, that he had no right to demand possession of the lessee, till after the expiration of the lease; and could recover no higher rent than tlxat fixed by the lease, up to the time he demanded possession, after the expiration of the lease.
No account was stated in the case, and the cause was remanded, that an account might be taken; and the court remarked, that if it shall appear by the above rule of computation, that the rents were insufficient to have paid the mortgage debt of the lessee at the time this suit was brought, then that it was premature, and must fail.
Heydenfeldt, Justice, delivered the opinion of the court. Wells, Justice, concurred.
The conveyance by Morse to Mrs. Keys, subrogated her to the rights which he held as mortgagee, and Bradley’s consent did not invest her with any greater interest. The only error observable is in the computation of damages by the court below, and this results from not having an account taken between the parties.
The interest of Mrs. Keys was twofold.
1st. As mortgagee with a claim of twenty-five hundred dollars derived from Morse.
2d. As lessee of Bradley, the mortgagor from 30th April, 1851, to 30th April, 1852, at a rent of one hundred dollars a month.
By the purchase at sheriff’s sale, Johnson obtained Bradley’s equity of redemption subject to the lease to Mrs. Keys, and therefore had no right to demand possession of her until the expiration of the lease, and ought not to recover rent at a higher rate than that fixed by the lease, up to the time he demanded possession, after the expiration of the lease. And if it shall appear by this rule of computation that the rents were insufficient to have paid the mortgage debt of Mrs. Keys at the time this suit was brought, then it is premature, and must fail, unless the plaintiff offers to redeem, which he may do by the allowance of an. amendment.
The judgment is reversed and the cause remanded, that an account may be taken upon the principles here indicated.
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