Butler v. Burt
Before: Cooper
Synopsis
Rent.—The Complaint in an Action for Rent Alleged that, after plaintiff had commenced a suit to foreclose a mortgage on the leased premises, defendant entered into possession under an agreement requiring him to pay a portion of the rent to plaintiff and a portion to the mortgagor. The answer set out a lease with the mortgagor alone, under which defendant claimed that he took possession of the property; but it required the payment to plaintiff of the same portion of the rent as alleged in the complaint. The answer also set out a guaranty of possession to defendant, which had been executed by plaintiff. Held, not such a variance as to the manner of leasing the property as would preclude judgment on the pleadings in plaintiff’s favor.
Rent.—Where a Tenant Enters into Possession of the leased premises under a lease reciting a decree of mortgage foreclosure and order for the sale of the property, and requiring the tenant to pay a portion of the rent to the mortgagee if he purchases the property at the foreclosure sale, the fact that the mortgagee has the decree and order of sale set aside does not preclude him from recovering such rent, after he has purchased the property at a sale under a subsequent decree in the same suit.
Rent.—The Defendant in an Action for Rent Alleged the surrender of possession and the payment of $140 to plaintiff on the day when the latter commenced an unlawful detainer suit. The claim in the action for rent was to a certain date, and the rent from that time till the surrender of the premises would amount to $140 at the rate at which the property was rented. It was also alleged that such payment and surrender of possession was under the agreement that it was not to be taken as an admission by defendant that plaintiff had any claim against defendant for rent. Held, that it was not error, in rendering judgment for plaintiff on the pleadings, which did not show any defense,- to refuse to give defendant credit for the $140.
Pleading—Amendment.—A Cause will not be Reversed by reason of a failure to allow the amendment of a pleading when no permission to amend is asked.
COOPER, J. This is an appeal from a judgment for plaintiff on the pleadings, which were verified. The complaint alleges that on the twenty-first day of August, 1895, one Soule was the owner of the premises described in the complaint, and that plaintiff had commenced a suit for the foreclosure of a mortgage thereon; that it was understood and agreed, between plaintiff and Soule, that, in case of sale [919]by virtue of the foreclosure proceedings, the plaintiff would purchase the premises; that defendant was anxious to obtain a lease of the said premises, and a written agreement was entered into, by the terms of which the defendant rented the premises at the monthly rental of $35 from the first day of September, 1895, the rent, after foreclosure sale, to be paid, one-half to Soule and one-half to plaintiff, until the period' allowed by law for the redemption of the premises should expire, and thereafter the whole to be paid to plaintiff ; that defendant entered into possession of said premises, under the lease, on the twenty-first day of August, 1895, and continued in- possession thereof under said lease until the last day of December, 1897; that the premises were sold under the decree of foreclosure on May 21, 1896, and the time for redemption thereof expired November 21, 1896, at which time the said Soule conveyed the said premises by deed to plaintiff, and also assigned and transferred the said lease, and plaintiff has ever since been the owner of' said premises' and of said lease; that no part of the rent was paid to plaintiff after June 1, 1896; but that $17.50 per month for the months of June, July, August, September, October and November, 1896, and $35 for each month thereafter to the end of the year 1897, amounting to $560, is due and unpaid from defendant to plaintiff under the terms of said lease. The answer attempts to deny the allegations of the complaint, but each denial is followed by the qualifying words “otherwise than herein stated.” We must then look to the affirmative part of the answer to see the admissions “otherwise therein stated.” The answer alleges the leasing of the premises from Soule, and sets forth a copy of the lease as Exhibit A annexed to the answer. It is argued by the defendant that this allegation constitutes a defense, for the reason that it is a different lease from that set forth in the complaint, being a lease from Soule alone, and not from Soule and plaintiff jointly. But the lease, although signed by Soule alone, expressly provides that one-half the rent is to be paid to plaintiff, in case he becomes the purchaser at foreclosure sale, until the time for redemption expires, and then the whole thereof to be paid to him. Defendant also sets forth, as a part of his answer, Exhibit C, which is
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