21 Wend. 65 | N.Y. Sup. Ct. | 1839
By the Court,
There was clearly no room for the defendant to show a fraud in the sale of the demised premises. Had he offered to prove that the sale and demise were with a view to defraud creditors, that would have been proper; but for aught that appears, the fraud might have been a matter entirely between the parties to the deed.
The statute requires that an affidavit of the rent due should be furnished to the officer, who is then authorized to raise both the rent and judgment. He is let in as a kind of bailiff to the landlord, and may act very much as he could do under a distress warrant. Here was an objection that he and the plaintiff could not waive the affidavit by paroi, assuming that they might waive it in some way. But I very much doubt that, unless the tenant be a party, and give his consent also, that there should be a sale; otherwise he might sue the officer for acting against him without authority. I think the plaintiff must at all events furnish the officer with his affidavit in these cases, or he has no right to complain that the officer will not apply the proceeds to the payment of rent. To be sure, if the tenant expressly and freely consent, he cannot sue the officer; but nothing of that
Again ; why was the defendant below shut out from proving that no rent was due 1 for that was the amount of what he offered. The tenant, himself a witness for the plaintiff, could not state the amount of the rent, as I understand the return. That, of itself, would have been a fatal objection, if it had been taken. A tenant silently occupying under circumstances entitling his landlord to an action for use and occupation merely, does not give him a right either to distrain or demand that an officer shall levy for what he chooses to say the premises are worth. But if an agreement to pay a liquidated sum (and if liquidated there must have been an agreement) had been proved many times over, this would not preclude the defendant from rebutting and overcoming it by counter proof. That right was denied.
The judgment must be reversed, and a venire de nova issue from the court below, the costs to abide the event.
