Jackson ex dem. Clark v. Babcock — 17 Johns. 112

Majority

p. 98

*Jackson, ex dem. Clark, against Babcock.

Headnote

The assignee of a mortgage may be let in to defend in an action of ejectment, as landlord, in the place of the tenant.

THIS was an action of ejectment, in which the lessor claimed as a purchaser of the premises in question under a judgment. Benjamin Ballow, afterwards, on the 28th of August last, purchased a mortgage on the same premises, and took an assignment thereof, and also purchased a judgment prior to that under which the lessor of the plaintiff claimed title.

J. Lynch now moved to let in Battow, as defendant,

in the place of the present defendant.

Storrs, contra.

It was decided in Wisner v. Wilcocks, (Col. Cases, 56.) that it was the privity of interest, and not the receiving of rents, which was the true test, as to the admission of a person to defend as landlord; and that a mortgagee out of possession might be let in to defend, in an action of ejectment brought to recover the premises. There is the same connection between the assignee of the mortgagee, and the tenant, as between the mortgagee himself and the tenant. We see no reason, therefore, why this motion ought not to be granted; so far, at least, as to let in Ballow, as landlord, to defend on the usual terms, on his stipulating to give no evidence of any title derived from his purchase of a prior judgment, but of the title only acquired under the mortgage.

Rule accordingly.