Bantleon v. Smith

2 Binn. 146 | Pa. | 1809

Tilghman C. J.

delivered the court’s opinion.

The plaintiff in this suit, by indenture between him and the defendant, granted to the defendant a parcel of land in fee, out of which he reserved an annual rent-charge of sixty dollars. The deed contained a power to the grantor to reenter in case of non-payment of the rent, and to hold the land till the arrears of rent were discharged. It also contained a covenant on the part of the defendant to pay the rent. The plaintiff brought an action of covenant for non-payment of the rent, and obtained a judgment on which an execution issued, by virtue whereof the land was sold, and the 'money proceeding from the sale brought into court by the sheriff. This money is claimed by creditors of the défendant who obtained judgment prior to the plaintiff.

Two questions have been brought before the court. 1st, Whether the plaintiff shall be allowed to receive, out of the money, the amount of the arrears of rent. 2d, Whether he shall receive the interest on the rent.

The defendant’s counsel have endeavoured to prove by a very subtle argument, that in consequence of the plaintiff’s judgment, the land was totally discharged of the rent. If the law be' so-, it is incumbent on the defendant to prove it by clear authority; for it is a doctrine which bears very hard upon all persons who hold rent-charges. Cases were cited to shew that a writ of annuity lies for arrears of a rent-charge, and that after judgment obtained in a writ of annuity, the land is discharged and a distress cannot be made. Upon examining these cases, and those cited on the same subject by the plaintiff’s counsel, it will appear that the rent-charge there spoken of was not of the nature oí the rent now in question. It was the case of a man who granted to another and his heirs, a yearly sum of money, and charged it on his land, with power to the grantee to distrain. In such cases, the law gives to the grantee of the rent an election either to charge the person of the grantor by a writ of annuity, or to have recourse to the land by distress. Having made his election by recovering judgment in a writ of annuity, the land is discharged, and his remedy is personal only. If there shall be new arrears after the judgment in annuity, a scire facias must be sued out on the judgment. But the law is not so in a case like the present, where the grantor in the indenture grants the land itself, reserving a rent; for there no writ of annuity lies. There is no analogy therefore between the two cases.

The defendant next resorted to another argument. The rent, says he, is extinguished by the judgment. To prove this, was cited 6 Co. 45, Higgins’s case, where it is said that an action of debt will not lie on a bond on which judgment has been obtained. Certainly it will not; and why? Because the bond debt is merged in the judgment, which is a debt of record. The obligee in the bond loses nothing by this; for although the bond is extinct, the debt is not. On the contrary, it has become a debt of a superior nature, which may be recovered by a scire facias or action of debt on the j udgment. So by virtue of the judgment in the case before us, the rent recovered is no longer a debt of specialty on which an. action of covenant lies, but a debt of record. But the rent still exists, or in other words there still exists a debt on account of the arrears of rent. Higgins’s case only proves, that the remedy for those arrears by action of covenant is gone, but it does not prove that the rent is extinct, or the land discharged. The defendant’s counsel cited 5 Com. Dig. Pleader 3 K. 20, where the law is thus laid down. “ In bar to an avowry for “ rent, the defendant in replevin may plead in bar, as in debt “ for rent.” After this general position, for which we have only the authority of Comyns, he goes on to give examples tíf pleas which may be put in, nil habuit in tenementis, non demisit, nothing in arreab. Now all those pleas go to prove that no rent, no debt of any kind, is due; and if the author’s meaning be taken in this restrained sense, his principle is undoubtedly true; for nothing is plainer than that a man cannot distrain for rent where no rent is due. But jf it be contended that the meaning of Comyns is that no distress will lie where judgment in an action of debt for the rent has been obtained, without any satisfaction, I can only say that he has cited no authority to support his assertion. In the common case of a mortgage and bond for the same debt, I have never heard it doubted that an ejectment would lie for the land after judgment had been obtained on the bond, provided the money was not paid; and if the deed of mortgage contained a covenant of the mortgagor to pay the debt, I see no reason why an ejectment should not lie after judgment in an action of covenant. This is not unlike the- case of rent, where a double remedy is given for a recovery of the same debt, one against the person of the debtor, and one against the land.

If therefore this matter rested solely on the reason of the thing, and the cases .cited dn the part of the defendant, I should incline to the opinion that the land remained charged with the' rent. But the plaintiff’s counsel produced a manuscript case of Potts v. Rhoads, where this very point was decided by the late President Biddle, after argument in the Common Pleas in the year 1791. This opinion is entitled to great, weight; for Mr. Biddle was not only well versed in the principles of the law, but remarkably well acquainted with the practice, having held the office of deputy prothonatary of the Court of Common Pleas many years before the revolution. On the whole, the opinion of this court is that the plaintiff is entitled to receive the arrears of rent.

But shall he have interest on these arrears? The counsel on both sides have gone pretty largely into the argument, whether in general interest is recoverable as damages in an action of debt or covenant for rent. The court mean to confine their opinion to the case before them; and they think the plaintiff is not entitled to interest, because as to the present question he seeks his remedy by resorting to the land -only. If a man distrain for rent,- he must distrain for the precise sum due. He cannot add interest-to the arrears. If the plaintiff had entered on the land by virtue of the power in this deed, he could only have held till the arrears were-paid. We do not say how the case would be, if the deed gave him power to enter and hold as of his former estate; for in that case his former estate in fee being revested in law, the defendant would be driven to equity for relief, and in equity it might be thought reasonable to relieve on terms of paying interest. The defendant’s counsel cited cases to that point. With respect to the recovery of interest in general in personal actions for rent, the court desire that no inference may be drawn from their present decision. The late proprietaries of Pennsylvania were in the habit of receiving the arrears of their rents without interest. With respect to those rents, the law has been taken for granted that' interest was not recoverable. Hence many persons have supposed that in no ihstance can interest on rent be recoverable. When the point is brought forward, the court will decide it; at present they only declare that they consider it as fully open to discussion.