Spiotta v. Nat'l Grocery Co.

• Decision Date: 09 May 1933
• Citation: 168 A. 159
• Parties: SPIOTTA v. NATIONAL GROCERY CO.
• Court: New Jersey District Court

168 A. 159

SPIOTTA

v. NATIONAL GROCERY CO.

District Court of New Jersey, Hudson County.

May 9, 1933.

Action by one Spiotta against the National Grocery Company.

Judgment for defendant.

Benjamin Wasserman, of Newark, for plaintiff.

Stickel & Stickel, of Newark, for defendant.

CARNEY, Judge.

The plaintiff in this action (the landlord) seeks to recover from the defendant (tenant), the sum of $170 as rent, under a lease, for the months of September and October, 1932.

The defendant interposed as a defense the fact that possession of the mortgaged premises had been acquired by a mortgagee whose mortgage was then in default; that a notice had been served upon the tenant, advising it of the default and demanding that the rent be paid to the mortgagee. The method used by the mortgagee to obtain possession was by notifying the tenants in writing that the mortgagor had defaulted, that possession had been taken by the mortgagee, and that the rent thereafter be paid to the said mortgagee.

There is some question as to whether or not the tenant had actually attorned, because the evidence disclosed that the tenant had paid the rent in escrow. I am therefore not called upon to decide the question of attornment, because it is clear that some doubt was evidenced by the tenant in making an absolute payment to the mortgagee. Nevertheless, the situation thus presented calls for a determination as to what constitutes obtaining possession by a mortgagee whose mortgage is in default. In this case, the determination must be made to rest upon the notice given by the mortgagee to the tenant.

In the case of Shields v. Lozear, 34 N. J. Law, 490, 3 Am. St. Rep. 256, we And that "By the common law, a mortgage in fee created an immediate estate in fee simple in the mortgagee, subject to be defeated by the payment of the mortgage money on the day named in the condition, and the mortgagee might enter immediately on the mortgaged premises, and hold the estate until the condition was performed. * * * The right to enter was postponed, and the possession was in the mortgagor, until the condition was broken by default in the payment of the mortgage money. Sanderson v. Den, ex dem. Price, 1 Zab. [21 N. J. Law] 646, note. With this modification of the rights of the mortgagee, as to the postponement of ability to obtain the possession of the mortgaged premises, the nature of the mortgage as a conveyance remains as it was at common law."

The rule laid down by the Court of Errors and Appeals in the above case is still the law to-day, in full force, and has not been modified. It will be seen that the mortgagee has title and the right to enter as stated above, thus giving the effect to the theory so often expressed that a...