Gibbes v. Jenkins , 3 Sand. Ch. 130 ( 1845 )

The Assistant Vice-Chancellor.

In my view of this case, it is not necessary to examine the questions upon the execution of the mortgage by the trustees under the marriage settlement.

The complainants are clearly entitled to a decree, irrespective of that mortgage.

There was no merger of the original mortgages, in the decree for their foreclosure which the Phoenix Fire Insurance Company obtained in 1826. The lien was not diminished or impaired, hut it was made more effective.

In April, 1834, the interest in the lease was vested in Gibson, and in Tucker the trustee of Mrs. Davis, subject to the lien of Mrs. Gibbes’s trustees by virtue of the original mortgages and the decree. So far as Mrs. Davis and her children had any rights in the property, they were subject and subordinate to those mortgages. I say in April, 1834, for although the term in the old lease expired on the 25th of March, the recital in the new leases is evidence that at their date, the parties were still holding under the old demise.

The new leases bear date April 22, 1834, and are granted to the two persons who had the legal title at the termination of the former demise. An enhanced rent is reserved, but it is not pretended that there was any consideration paid. They were church leases, a continuance of which is expected as a matter of course, without any covenant of renewal. The church was not bound to renew or continue the old lease, but the good will for such continuance arising from its ownership, constituted a recognized and valuable interest.

The new leases, by reference to»the holding under the expired term, show that the good will was operative in this instance. It continued the rights of the mortgagees, on precisely the same principle that it sustains the rights of Mrs. Davis and her children. If Gibson and Tucker obtained the leases as strangers would have taken them, independent of any prior or subsisting demise, the children of Mrs. Davis certainly have no interest in the premises. The description of Tucker as trustee for Mrs. D., in the leases, might possibly save her interest in the case supposed. But Gibson and Tucker could not, if they had been so disposed, obtain new leases so as to exclude any of the parties having interests in the old lease.

The law has long been settled in this court, that the new leases, though not a renewal, are a continuance of the original term, for the purpose of protecting the rights of such parties, both legal and equitable.

The case of Phyfe v. Wardell, (5 Paige, 268,) fully sustains the principle; and the leading cases from 1670 down, are there reviewed by the Chancellor. See also Holridge v. Gillespie, (2 J. C. R. 30,) where Chancellor Kent applied the same principle to a mortgagee in possession. And for more recent applications of it to analogous cases, I refer to Tanner v. Elworthy, 4 Beavan, 487; Waters v. Bailey, 2 Younge and Coll. Ch. R. 219 ; and Dickinson v. Codwise, 1 Sand. Ch. R. 214, 225.

The result is, that these tenements under the new leases, continued in equity, subject to the two original mortgages, precisely as they were, under the old lease; and the complainants are entitled to a decree by way of supplement to the former decree, for a foreclosure and sale.