20 Johns. 407 | N.Y. Sup. Ct. | 1823
delivered the opinion of the Court. It is well settled, as a general rule, that an acceptance by a creditor of a higher security than he had before, is an extinguishment of the first debt i as where a bond, or other seen-, rity under seal, has been accepted in satisfaction of a simple contract: but the acceptance of a bond for rent, is no extinguishment, because the rent issuing out of the realty, is of as high a nature; though a judgment obtained, on the bond would extinguish the demand. (3 Bac. Ab. 107. tit. Extinguishment, D. 1 Chitty's Pl. 96.) This general doctrine will not be questioned j but it may be contended, that it is applicable only to cases where the rent is reserved by deed, and cannot affect this case. That no such distinction exists, is apparent from the reason of the rule ; it has no reference to the form of the contract that may have been made, but is founded exclusively on this, that rent issues out of the realty, and is therefore considered a debt of a higher nature than a simple contract. Upon full examination, I am satisfied this principle is sound j and, has been recognised whenever it has been drawn in question. It makes no difference whether rent is secured by a parol lease or by indenture, as to the light in which the debt is viewed.
In Newport v. Godfrey, (3 Lev. 267. 4 Mod. 45.) the action was debt for rent, on a parol lease for three years, against the defendant, the executor of the lessee, who pleaded an obligation entered into by the testator, and that he had not assets sufficient to satisfy the debt due by the obligation : the plaintiff demurred. The question was, whether rent due on a parol lease, the term being ended, was payable before a debt by obligation. The counsel for the defendant did not controvert the general principle, but contended, that the term being ended, the arrears were merely personal. Judgment was rendered for the plaintiff in the Court of C. B. who held that the contract remained in the realty, though the term was determined. The judgment of affirmance is reported in 12 Mod. 7. under the title of Godfrey v. Newton, where it was held by all the Judges, that the rent
In Gage v. Acton, (Comyn’s Rep. 67.) one question was, whether an administrator could plead a retainer, for a debt due to himself on a bond, to an action of debt for rent; it was held that he might, for the debts are of equal degree. The Court declared the case of Godfrey v. Newport to be good law, which seems to have been decided on the ground, that an executor cannot plead a bond made by the testator, and not satisfied, to an action for rent; for being of equal degree, one cannot be a bar to the other.
In the case in Comyn’s Rep. the Court held, that there was no difference between rent due upon a lease by parol and a lease by indenture ; for in both cases, the rent is of the same quality, and that one may be retained against a debt due on bond, as well as the other. The same doctrine was laid down in Stonehouse v. Ilford; (1 Comyn’s Rep. 145, and in 3 Bac. Abr. 82, these cases are cited with approbation. So, also, in Willet v. Earle, (1 Vernon’s Rep. 490.) the point was, whether an executor who had paid the arrears of rent reserved upon a parol lease, had well administered, so as to bar the plaintiffs, who were bond creditors. The Court was of opinion, that the rent, though upon a parol lease, partook of the realty, and was, therefore, to be preferred to debts upon bond. If such be the law, of which I have no doubt, it disposes of the present cause ; for it appears that the plaintiff rented the house and lot, at the yearly rent of twenty-five dollars; and admitting it was a parol demise, the action for rent was not merged, by taking a specialty for the amount due, but they stand in equal degree. The plaintiff below had his election to pursue his remedy on either. The doctrine of merger does not apply. The form of action is assumpsit; but being for the recovery of rent, although reserved by parol, it is, for the reason given in the adjudged cases, of as high a nature as an instrument under seal. This view of the subject renders it unnecessary to inquire, whether the defendant in the Court below, by not distinctly making this objection, can now be permitted to urge it as cause for a reversal. If there is no difiicultv in the
The second and third points may be dismissed in few words. If the plaintiff below had a right to distrain, it was a concurrent remedy ; it did not affect the right to maintain an action, unless thereby payment or satisfaction had been obtained. The property distrained was sold for thirty dollars ; to that amount it was a valid set-off, but it had no other or greater effect. The due-bill was effectually cancelled by the endorsement made on it, by order of the Court, The evidence of cancelling was inseparable from the note, and rendered it a dead letter. It must be considered as having been done, by the assent of the plaintiff; for unless he had assented, the Court would not have sustained his action; his election to put his right to recover on the ground of use and occupation, was an abandonment of the note, and evidence of his assent to its being cancelled. The Court are of opinion, that none of the exceptions were well taken, and that the judgment of the Court below ought to be affirmed.
Judgment affirmed.
