27 Ala. 630 | Ala. | 1855
The assignment in this case was a general one for the benefit of creditors, and conveyed to the assignee “ all the property whatsoever” of the assignor. It was accepted by the assignee ; and although, under these circumstances merely, he may not have been bound as the as-signee of the lease, he was certainly so bound, if he elected to accept the interest of the assignor, and to enter under it.— Carter v. Hammett, 12 Barb. 253 ; Bourdillon v. Dalton, 1 Esp. Cas. 283; Copeland v. Stephens, 1 B. & Ald. 593. Conceding that the acceptance of the assignment would not be sufficient, the only question is, whether taking possession of the store, for the purpose of selling the goods assigned, and actually selling them therein, amounted in law to such an acceptance. In Welch v. Myers, 4 Camp. 368, it was held by Lord Ellenborough, that the allowing of the bankrupt’s cows to remain on the farm for two days, and ordering them to be milked there, was an adoption of the demise, so as to make the assignees the tenants of the lessor. In Clark v. Hume, Ry. & Moody, 207, Abbot, C. J., held, that the assignee elected to accept the lease by using the premises for the benefit of the creditors. These cases establish the position, that taking possession of the leasehold estate, and holding it for the benefit of the creditors, though for ever so short a time, by virtue of the assignment, is the true test. We do not mean to say by this, that if the assignee entered only for the purpose of obtaining possession of the goods, it would be an acceptance; for that would, in no just sense, be taking possession of the premises. But certainly, if the assignee took possession of the store in order to use it, as the evidence shows it was used, as a place to sell the goods, it falls directly within the principle of the cases we have cited; and if that was the object, it is entirely immaterial how long the possession was retained, as when once the election was made, the as-
That the taking of the notes did not operate to extinguish the rent, is a clear proposition. — Fowler v. Bush, 21 Pick. 230 ; Chitty on Contracts, 660, 661.
Judgment affirmed.