69 Pa. 316 | Pa. | 1871
The opinion of the court was delivered, October 16th 1871, by
Philip Smethers, being the owner of .a tract of land in Clarion county, subject to a mortgage to Matilda Kifer, conveyed one undivided moiety thereof to Samuel Duff, clear of encumbrances. Duff then leased this moiety to Smethers for the term of hve years at a certain annual rent. The defendant below, Samuel Wilson, by a writing attached to or endorsed on the lease, became bound for the faithful performance of the covenants and agreements to be done and performed on the part of Smethers. This was an action by Duff against Wilson for rent accrued under the lease.
The defendant below offered to show that the mortgage of Matilda Kifer had been sued out, the premises sold by the sheriff, and the tenant evicted by the purchaser at sheriff’s sale before the rent accrued. This was objected to and rejected by the court, and this ruling forms the only assignment of error.
No doubt Smethers the tenant was bound by his covenants to pay off the Kifer mortgage, and it is therefore contended that inasmuch as this eviction was in consequence of his own default, he should not be allowed to take advantage of his own wrong in resisting on that account the payment of the rent; and if he could not, neither can Wilson his surety. There is great plausibility in this argument. But let us examine it a little more closely and see to what consequences it leads. It is not denied that, apart from his covenant to pay the mortgage, the eviction would have suspended the rent. When the title was divested from Duff and vested in the sheriff’s vendee, the relation between Duff and Smethers ceased, as much so as if Duff had himself assigned the reversion to a stranger. It is always competent for a tenant to set up that the title of his landlord has come to an end subsequent to the date of the lease. The purchaser at the sheriff’s sale might have affirmed the lease and required the rent to be paid to him as assignee of the reversion: Farmers’ and Mechanics’ Bank v. Ege, 9 Watts 436; Hemphill v. Tevis, 4 W. & S. 535. Had he done so, it can hardly be pretended that Smethers could have been compelled to pay the rent to Duff as well as the purchaser. In this case he elected to disaffirm the lease and took possession of the premises. Surely, Duff’s right of recovery cannot depend upon the election of the purchaser. This is a reduotio ad ahsurdwm. In every lease there is an implied covenant of quiet enjoyment. Whenever the enjoyment ceases by lawful title, rent, which is the recompense of enjoyment, also ceases. Duff had a right of action against Smethers for his violation of his covenant to keep him indemnified against the mortgage. In that action hé could recover such dam
Judgment reversed, and venfre facias de novo awarded.