Dilks v. Kelsey

• Decision Date: 21 February 1905
• Citation: 59 A. 897
• Parties: DILKS v. KELSEY.
• Court: New Jersey Supreme Court

59 A. 897

DILKS

v. KELSEY.

Supreme Court of New Jersey.

Feb. 21, 1905.

Error to Circuit Court, Camden County.

Action by Sarah Dilks against Orlando Kelsey. To a judgment for plaintiff, defendant brings error. Affirmed.

Argued at November term. 1904, before GUMMERE, C. J., and GARRISON, GARRETSON, and REED, JJ.

J. J. Crandall, for plaintiff in error.

Watkins & Avis, for defendant in error.

PER CURIAM. The proceeding under review was brought under the landlord and tenant act. It was originally instituted before a justice of the peace, but was subsequently removed into the Camden circuit court on the application of Kelsey, the plaintiff in error and defendant below. At the hearing the circuit court found as a fact that Mrs. Dilks, the defendant in error, had rented Kelsey the property, possession of which is sought by this proceeding, from month to month, at a rent of $10 per month; that Kelsey had paid this rent under the lease for a period of three months, and had then defaulted. Upon these facts the circuit court gave judgment in favor of Mrs. Dilks for the possession of the land and premises.

Two errors are assigned. First that the court committed error in finding that the relation of landlord and tenant existed between the plaintiff and defendant Second, that the court committed error in trying the question of title to land in this issue, and deciding the question of ownership.

In disposing of the first assignment it is sufficient to say that this court does not review findings of fact in cases brought before it by writ of error, beyond ascertaining that there is evidence to support it in the present case the proof was ample to support the conclusion that the relation of landlord and tenant existed between the parties in this action.

Our examination of the case satisfies us that the second assignment of error is based upon a misapprehension of the facts proved on the trial. The question of title was not in issue. The relation of landlord and tenant having been found to exist all that was necessary for the plaintiff to do was to show a failure to pay rent in accordance with the terms of the lease, in order to entitle her to possession as against the defendant This she did. On the case as made, the question of the title of the landlord could not be brought into issue. The rule that a tenant is estopped to deny his landlord's title applies with full force in summary proceedings by the landlord to recover possession. Am. & Eng. Enc. of Law,...