Summary
In Essex Title Guaranty Trust Co. v. Wylie, 120 N.J.L. 217, 198 A. 887, the lease provided for a yearly rental payable monthly in advance on the first day of each month and that upon default of the mortgagee in possession in the performance of any of the covenants of the lease the estate created, at the option of the owner, immediately therefrom ceased and determined.
Summary of this case from Waring v. RogersOpinion
Submitted February 11, 1938 —
Decided April 29, 1938.
1. A grant with a proviso to pay a certain rent by a certain day, and upon failure so to do the estate granted should be void, is a condition, upon the non-performance of which the grantor may re-enter.
2. A grant with a provision that upon failure to perform a certain act it shall be void need not contain a clause of re-entry, and actual entry is not required as a predicate to an action of ejectment for failure to perform.
On appeal from the Supreme Court.
For the defendants-appellants, Thomas Brunetto.
For the plaintiff-respondent, Boyd Dodd.
This is an appeal from an order of the court below striking the answer of the appellants to the complaint of the respondent "in ejectment," and the entry of judgment thereon.
The respondent, as mortgagee in possession, entered into a lease with the appellant J. Robert Wylie for an identified portion of certain premises located in the town of Montclair at a yearly rental, payable monthly in advance on the first day of each month. The lease provided that upon the default of appellants, in the performance of any of the covenants and agreements thereof, the estate created, at the option of the respondent, immediately therefrom ceased and determined. The appellants were in arrears as to rent, and respondent, exercising its option, filed its complaint aforesaid.
The court properly struck the answer of the appellants and entered judgment, because: a grant with a proviso to pay a certain rent by a certain day, and unless done the estate thereby granted should be void, is a condition, and upon the non-performance of which the grantor may re-enter. 4 Kent Comm., § 11, 123. There is no need for an express clause of re-entry. Taylor, Landlord and Tenant, § 291. Actual entry is no longer necessary; the right to re-enter is all that is required. Cornelius v. Ivins, 26 N.J.L. 376; Boys et al. v. Robinson et al., 61 Id. 185.
The respondent having elected to treat the term of the appellant as ended, ejectment will lie. Ocean Grove Association v. Sanders, 68 N.J.L. 631.
The order and judgment under review will be affirmed.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 15.
For reversal — None.