
    Vernard V. Aiken and Gloria I. Aiken v. Fred Watson
    [298 A.2d 559]
    No. 167-71
    Present: Shangraw, C.J., Barney,. Smith, Keyset- and Daley, JJ.
    Opinion Filed December 13, 1972
    
      James H. Rifkin, Esq., and Robert Bates, Esq., Wilmington, for Plaintiffs.
    
      Timothy J. O’Connor, Esq., and Edward Goutas, Esq., Brattleboro, for Defendant.
   Per Curiam.

This is an ejectment action brought under 12 V.S.A. § 4773, requesting judgment for the arrears of rent, possession of the premises and attorney’s fees. Answer was filed by the defendant, accompanied by a tender of the total rent in arrears, plus costs. All this was accomplished in April, 1971. Amendments to the pleadings were filed in August, 1971, asking for forfeiture under the lease for reasons other than nonpayment of rent. It appeared on argument that the lease has now expired by its terms, and the land-' lord has resumed possession of the premises.

12 V.S.A. § 4773 mandates discontinuance of the action upon payment of the rent arrearage into court. This was accomplished in April, and discontinuance should have followed at that time. The amendment attempted thereafter must be treated as a nullity and the doctrine of Canfield v. Hall, 121 Vt. 479, 160 A.2d 768 (1960), has no application to this case. The motion of the defendant for dismissal made below should have been granted; therefore, we will do so here.

Judgment vacated and cause dismissed.  