Mortgages — Rents — Collection — Application to taxes — Time of credit — Negligence — Set-off by real owner — Deposit to secure lease.
1. In an action by plaintiff as mortgagee to recover from the defendant as real owner the sum which plaintiff was obliged to pay at a foreclosure sale of the mortgaged premises in order to clear the title of the lien of delinquent taxes, the defendant was properly allowed as a set-off the amount of rents collected by plaintiff from the tenant of the mortgaged premises, where it appeared that plaintiff had not attempted to credit such rents on account of the principal of the mortgage debt until after judgment had been entered in the foreclosure proceedings, and after the present suit had been commenced.
2. Evidence offered by defendant that before the plaintiff took over the property the defendant had successfully collected the rents, and that after the foreclosure sale, when the title had passed to the plaintiff, a new lease was made with the same tenant and the latter paid rent under the new lease, was not competent to establish negligence on the part of plaintiff in failing to collect rents due from the tenant at an earlier date.
3. Where the tenant had deposited with defendant, as security for the rent under the first lease, a sum in excess of the amount claimed by defendant as a set-off because of the alleged negligence of plaintiff in collecting the rents, defendant could not keep such deposit and also be entitled to the set-off claimed.
Argued October 22, 1936.
PER CURIAM, November 13, 1936:
The judgment is affirmed on the opinion of President Judge GORDON.