2 Cow. 652 | N.Y. Sup. Ct. | 1824
The principal question'in this cause is, whether a landlord can distrain for rent, without - reserving a 'special power of distress; At the common law, théré Wére ■three kinds of rent; rent service, rérit charge, and rent seek. The first is, where the tenant holds his land by fealty and certain rent, or by rendering services, as ploughing the land, shearing the sheep and the like ; for these the lord might ■ distrain of common right, provided he had in himself -the reversion, and the service be certain,.or capable of being reduced to certainty, so that upon the avowry, he might-' be able to ascertain and recover damages for non-perfórmaneé. (Cok: Litt. 96, a. 2 Cr’ui. 307. tit: 28, ch. 1, seé. 6. 2 Black. 42.' 10 John. 92.) The right of distress was inseparably incident, as. long as the rent was payable to the lord, who was entitled to the fealty; To every tenure, fealty is incident, so long as the tenure remains; (Cok. Lit. 93, a. 2 Cruise, tit.-. 28, ch! 1, see. 6.)'
But a right of distress was not incident tó a rént charge,' because there was no future interest or reversion, and no fealty was annexed to such grant; the land became chargeable by virtue of a clause authorizing a distress'. (2 Cruise, ■ 308. 2 Black. 42.)
In England, the same remedy is extended to all rents' alike, by the statute, 4 Geo. 2, ch. 28, which has, in effect, abolished all material distinction between them. This sta-tute has not been enacted in this state; Our act concerning distresses, (1 R. L. 434,) contains the provisions of a number of British statutes, regulating the proceedings byway of distress, but not expressly defining what shall constitute a • right to distrain; it would, therefore, seem, that where there is not a clause of distress, the landlord’s right to this remedy' cannot be more extensive than that given by the common law, which is limited to rent service. It is contended that-the right to distrain is founded on the right of the- landlord - to demand fealty, and cannot be supported merely by show: ing a reversionary interest. This Was undoubtedly the corn* ■
But if this were questionable, the 5th section, in my view, secures the right, by declaring that the fealty or distresses incident to rents or other services, belonging to tenure in common socage, shall not be taken axvay. If fealty be considered necessary to support a distress, the statute intervenes and declares that the non-existence shall not be alleged to defeat the remedy. The act concerning distresses, does not expressly define the cases in which a distress may be laxvful: I think it, however, manifest from its provisions, that the common laxv right was not intended-to be abolished, but preserved in full force. The 6th section declares, that it shall be
But it is contended, that it does not appear the defendant had the reversionary interest in him. No question of this kind appears to have been raised at the trial; there is no express evidence of a reversionary interest, but it may well be presumed to exist; for it is admitted in the case, that the defendant recovered a judgment in an action for use and occupation, in the Court of Common Pleas, for the rent now sought to be recovered by way of distress. This judgment was affirmed in the Supreme Court. (20 John. 407.) It is settled, that, at the common law, assumpsit would not lie for rent; it was recoverable only by action of debt; the statute gave the action for use and occupation, for the purpose of obviating some of the difficulties that might occur in the re
The main point is, whether the defendant had a right to distrain for the rent due him. If this is not a case in which the landlord had a right to distrain then the sealed note was an extinguishment of the rent, and, of course, the defendant is liable to this action.
At common law, there were three kinds of rent:
1. Rent service, so called, because it had some corporal service incident to it, at least fealty, or the feudal oath of fidelity. Where fealty is due, therefore, witlj a pecuniary rent, and the landlord has the reversionary interest in the demised premises, then the landlord has, by the comm law, a right to distrain without any power in the lease.
2. Rent charge, is a rent reserved where the landlord has no reversionary interest. He would have, for such rent, no right to distrain, unless the power be contained in the lease.
3. Rent seek, is the same as rent charge, except that there is no right to distrain reserved. By statute of 4 Geo. 2, ch. 28, the right of distress is given in the two last kinds of rent; but, independent of that statute, the right of dis-training existed when the landlord was entitled to the reversion and to fealty.
By our old constitution, such parts of the common law and of the statute law of England, and such acts of the colony as together formed the law of the colony, on the 19th day of April, 1775, are declared to be the law of the state. By our statute concerning tenures, (1 R. L. 71,) all tenures of any estate of inheritance at the common law, are declared to be turned into free and common socage ; and by the common law, fealty is incident to this tenure. In all cases, therefore, where the tenure in this state is not allodial, and where
The defendant having, then, as is fairly.inferrable. the,reversionary interest, he had a right to distrain, and the note was no extinguishment of the rent. In my opinion, therefore, judgment must be rendered for the defendant.
Sutherland, J. concurred in the result of these opinions.
Judgment for the defendant.