Opinion
May, 1900.
Bullowa Bullowa, for appellant.
William H. Stockwell (Edward B. Whitney, of counsel), for respondent.
Rachel McAuley was in her lifetime the owner of an apartment-house in this city, and mortgaged it to one Winsten H. Hagan, who assigned the mortgage to Elizabeth L. Goodnow. Rachel McAuley afterwards died leaving a will wherein Hagan was appointed sole executor. What the will provided, or what powers it conferred upon the executor respecting the real estate does not appear, except that Mr. Hagan testified, without objection, that the will gave him general power to make leases. He did, in October, 1898, lease two apartments to the above-named tenant, who, at the time of the commencement of these proceedings, was in default for the rent due from July 1, 1899, to January 31, 1900. On September 29, 1899, Mrs. Goodnow, with the consent of Hagan, went into possession of the property, as mortgagee on possession, and a day or so afterwards Hagan assigned to her the unpaid rents due from Pope, from July 1, 1899, to the date of her assumption of possession under her mortgage. As between Hagan and Pope the relation of landlord and tenant undoubtedly existed, and consequently Pope cannot question either Hagan's right to receive the rents, nor his right to assign those which remained unpaid at the time he made the assignment to Mrs. Goodnow. The only question really involved is whether a mortgagee in possession Mrs. Goodnow, had the right to institute summary proceedings for the nonpayment of rent, for, it is conceded that to justify the pursuit of this remedy, the conventional relation of landlord and tenant must exist. That relation does exist, however, whenever the landlord of an existing lease transfers, or the law transfers for him, all his rights of possession under the lease, with the resultant right of collecting and enforcing collection of the rents. Thus, if a landlord make a deed of the property subject to the lease, the relation of landlord and tenant at once arises between the grantee and the tenant, or, if a receiver is appointed under the clause in the mortgage providing for that remedy, the receiver assumes the conventional relation of landlord sufficiently to enable him to enforce payment of the rent by summary proceedings. A mortgagee who has gone into possession of the mortgaged premises, with the consent of the landlord, occupies towards the tenant the same relation that such a receiver would occupy. He is entitled to collect the rents and profits in the quasi character of trustee or bailiff of the mortgagor. Hubbell v. Moulson, 53 N.Y. 225. He is entitled to compel the lessee to pay all subsequently accruing rent, as well as rent due at the time of taking possession, which had accrued since the making of the mortgage. 1 Washburn on Real Prop., 531-532. Indeed the very situation of a mortgagee in possession carries with it, by necessary implication, not only the right, but the duty of collecting the rents, and using for that purpose the processes provided by law. He must, in time, account to the mortgagor for all rents received, as so much paid on account of the mortgage debt, and upon such an accounting may be charged with the rents and profits he might have collected, if his failure to recover them can be attributed to his willful neglect. Hubbell v. Moulson, supra. Mrs. Goodnow, as mortgagee in possession, was entitled to institute these proceedings. So long as Hagan, Pope's landlord, consented to her going into possession it does not lie in the tenant's mouth to raise the question as to whether any other consent was necessary. We find no errors in the record which call for a reversal of the final order appealed from, and it is, therefore, affirmed, with costs.
Present: TRUAX, P.J., SCOTT and DUGRO, JJ.
Order affirmed, with costs.