Wilson v. Cornbrooks

• Decision Date: 06 February 1928
• Docket Number: No. 99.,99.
• Parties: WILSON et al. v. CORNBROOKS.
• Court: New Jersey Supreme Court

140 A. 292

WILSON et al.

v. CORNBROOKS.

No. 99.

Court of Errors and Appeals of New Jersey.

Feb. 6, 1928.

(Syllabus by the Court.)

Appeal from Circuit Court, Camden County.

Ejectment by John O. Wilson and another against Thomas M. Cornbrooks. From a Judgment (137 A. 819) for plaintiffs, defendant appeals. Reversed.

Marshall H. Diverty and French, Richards & Bradley, all of Camden (Floyd H. Bradley, of Camden, of counsel), for appellent.

Lewis Starr, of Camden (Starr, Summerill & Lloyd, of Camden of counsel), for respondents.

KAYS, J. This is appeal from a judgment in an action of ejectment brought in the Camden county circuit court to recover possession of a tract of land situated in the city of Camden, N. J. The circuit court judge allowed a rule to show cause why plaintiffs' answer should not be stricken out and gave the parties to the suit leave to take depositions to be read upon the return of the rule. On the return of the rule to show cause, the case was argued before the circuit court judge and he filed an opinion in which he held that the answer did not present a meritorious defense, struck out the same, and gave judgment in favor of the plaintiffs in ejectment for the possession of the premises in question. The depositions and other proofs presented to the court on the return of the rule to show cause, showed that on February 13, 1919, one George W. Jessup, who was then the owner of the lands in question situate in the city of Camden, made a lease of the same to the Automobile Sales Corporation for a term of 10 years running from the 1st day of February, 1919, to the 1st day of February, 1929, at a yearly rental of $2,000, payable in equal monthly installments, in advance, of $185, each on the first day of each and every month during the continuation of said lease. By the terms of the lease the lessee covenanted and agreed "not to underlet said premises, or any part thereof, nor permit any person or persons to occupy the same, or any part thereof, nor use or permit any part thereof to be used for any other purpose than automobile business nor make or suffer to be made any alterations therein, without the written consent of the said party of the first part; and also, at the expiration of said term, to yield up and surrender possession thereof," etc. The said lease further provided for a right of re-entry by the lessor in case of default of any of the covenants therein contained.

On January 31, 1920, and for the consideration of $1 therein expressed, the Automobile Sales Corporation entered into a contract with the Neel-Cadillac Company, by the terms of which agreement the said Automobile Sales Corporation did "sell, assign transfer, and set over" to the Neel-Cadillac Company the said lease made to it by the said Jessup, "and also all the estate, right, title, term of years yet to come, claim and demand whatsoever of, in, and to or out of the same, of the said Automobile Sales Corporation; to have and to hold the same unto the said the Neel-Cadillac Company, its successors or assigns, for the residue of the term therein mentioned; subject, nevertheless, to the rents, covenants, conditions, and provisions therein also mentioned." In October, 1923, the Neel-Cadillac Corporation executed a paper to John F. Brown, Jr., by the terms of which said company "sold, assigned, transferred, and set over" unto the said Brown the lease made by the said Jessup. This covered an assignment of said original lease for the full term of the same reading as follows: "And all the estate, right, title, and terms of years yet to come." This contract provided for the payment by the said Brown to the said company of $350 monthly for the balance of said term and covered the whole of the premises in question for the remainder of the term of the original lease. It further provided a right of re-entry by the said last-named company in case of failure of the said Brown to make payment of the installments provided therein. In December of the same year, the said John F. Brown, Jr., executed a paper assigning the said lease in question to the Willbert Motor Company for the remaining part of the term and covering the entire premises in question for the same consideration, to wit, $350 per month, to be paid to the said Neel-Cadillac Company. In the month of October, 1925, the said Willbert Motor Company executed a paper assigning to Thomas M. Cornbrooks all its right, title, and interest in and to the said lease of February 13, 1919, covering the whole of said premises in question. By the terms of said agreement the said Willbert Motor Company "doth hereby assign, transfer, and set over unto Thomas M. Cornbrooks all its right, title, and interest of, in, and to a certain indenture of lease dated," etc., "made by and between Jessup and the Automobile Sales Corporation for the term of 10 years from the 1st day of February, 1919, to the 1st day of February, 1929, under the terms and conditions expressed in said indenture of lease." Cornbrooks by this agreement contracted to pay to the Willbert Motor Company $525 each and every month "during the remainder of the term of the said indenture of lease...