Wood v. Maynard Motor Equipment Co. ( 1930 )

TANNER, J.

This is a bill in equity ■brought to restrain the foreclosure of a mortgage to secure a bond for the payment of rent. The bill is based upon the effect of the landlord taking ■possession of the premises let upon nonpayment of rent and a judgment and execution in his favor upon a writ of ejectment.

We think it is true, as claimed by the complainants, that at common law the effect of a landlord taking possession for non-payment of rent is to terminate the lease unless there be some reservation in the lease, or the bond securing the lease, to the effect that the tenant shall be liable for rent subsequently accruing or that rent subsequently accruing shall be due as liquidated damages. No such reservation appears upon the statements of the bill. On demurrer, therefore, we can not read any such reservation into the bill. It does appear, however, that there was a few days’ rent already due at the time the lease was terminated. This being so we can not say on demurrer that the landlord is not entitled to enforce the payment of this rent already «due by means of his mortgage.

Eor complainants: Arthur L. Conaty. For respondents: Robinson & Robinson.

The demurrer is therefore sustained.