Storey v. Dutton

Marston, C. J. Tbe facts upon which this case arises are set forth in Dutton v. Merritt 41 Mich. 537. The plaintiff in this case seeks, as assignee of Merritt’s interest in the lease referred to, the rental value of the premises [540] not already credited upon the mortgage foreclosure decree. The fact that defendants have occupied the premises, and that they must pay a fair rental therefor, is not questioned, but they claim the right to apply the rent upon the amount still due them upon the decree. The fact that these defendants foreclosed the mortgage given them would not deprive them of the right to resort to any other security they held in order to obtain full satisfaction of the debt; and the mortgagor could not deprive them of this right by assigning the' due and unpaid rent to a third person. The latter could acquire no better right than that of his assignor, who could not have sued for and recovered the rent in this case. "While the defendants remain in possession the fair rental value of the premises must be applied in reduction of the decree until the extinguishment thereof, and until the happening of that event, an action will not lie to recover rent which may be due and uncredited. It follows that the judgment must be affirmed with costs. The other Justices concurred.