142 Pa. 8 | Pennsylvania Court of Common Pleas, Philadelphia County | 1891
Lead Opinion
Opinion,
This case presents an interesting question that lies outside the beaten track of landlord and tenant cases. It was before us two years ago, and is reported in 129 Pa. 173. The material facts are not in controversy, and are as follows:
In 1886, Johnson leased the building at the corner of Tenth and Race streets, Philadelphia, to Rossiter, at an annual rent of seven hundred dollars, with leave to sub-let. Rossiter did soon after sub-let the first floor to Hessel, who went into possession with the knowledge of Johnson, at a rental of twenty-five dollars per month. On the 16th of October, 1887, Rossiter sold his lease to Fritz, and assigned his entire interest therein to him. The term had until April 1, 1888, to run. By his purchase Fritz became, and well understood the fact, the landlord of Hessel, entitled to collect the rent falling due from him. Three days later, Fritz surrendered his lease to J ohnson, who thereupon gave him a new one for the same premises, at the same rental but for a longer term. This arrangement was made without notice to Hessel, and in disregard of his rights, of which both parties had the fullest notice. For some reason Fritz did not pay his rent, and in March, 1888, while Hessel’s term was yet unexpired, Johnson issued a landlord’s warrant on his lease to Fritz for four months’ arrears. Upon this warrant a quantity of Hessel’s goods in his own store were seized as a distress for rent due from Fritz. An action of replevin was brought for the goods, in which Johnson avowed the taking for rent due from Fritz under the lease made in October, 1887. On the trial in the court below, judgment was rendered
The case went back for another trial, which has now been had. The judgment entered is again in favor of the defendant, but the rent in arrear is fixed at $100, being the amount of four months’ rent due from Hessel to his landlord under the Eossiter lease. This was probably intended as a compliance with the rule laid down in Hessel v. Johnson, supra, and as bolding Hessel simply for his own rent. It may be that Hessel owes and ought to pay this sum to his landlord, but our question is whether Johnson has the right to seize his goods because he does not pay it. What right has he ?
Hessel went into possession under Eossiter. Johnson was the landlord, Eossiter the tenant, Hessel the sub-tenant, and liable to be distrained upon either by his lessor for his own rent or by his lessor’s landlord for the rent to him on the original lease. When Fritz bought from Eossiter he assumed his obligation to pay Johnson, and acquired his right to collect from Hessel, the sub-tenant. The surrender of the lease may have passed the right of Fritz to collect the rent from Hessel over to Johnson, if the transaction had ended with the surrender. If the rent had not been paid then, it is probable that Johnson could have distrained, not for rent due from Eossiter or Fritz, for as to them the lease was at an end, but for the rent due from Hessel, whose sub-tenancy survived. Neither tbe avowry on which the first trial proceeded, nor the case stated which was substituted for the pleadings at the second trial, suggest that the seizure complained of was made by Johnson as the landlord of Eossiter or of Hessel. On the contrary, the only demise alleged in either is that of November 1, 1887, to Fritz. Our Brother Clakk, in Hessel v. Johnson, supra, pointed out very clearly that as Hessel was not in under the demise so set up, but in hostility to it, the seizure of his goods could not be justified under it.
The mere fact that Hessel owes rent to somebody is not enough to justify the seizure of his goods by anybody except the person who occupies towards him the relation of landlord. This is apparent if we consider on what the right to distrain rests. From the earliest days of the common law it has been regarded as a remedy for the non-payment of rent, to be made use of by the landlord or his bailiff because of a demise at a rent certain of the premises entered for the purpose of making the seizure. If a re-statement of this elementary principle were desirable, it was made in Chicago O. & M. Co. v. Barnes, 62 Pa. 445. The avowry of the seizure must therefore, on all the authorities, English or American, set out a demise; the rent reserved; that rent was in arrears under the demise; and that the seizure was made to compel payment of such arrears. It was formerly
It was distinctly held when this case was hero before that Johnson, having made the new lease with knowledge of Hessel’s position as a sub-tenant, could not seize his goods in his own possession, for the rent due from Fritz under the new lease. That was the only question then presented. We now hold that he sustained no relation to Hessel out of which the right to distrain could arise. His right to distrain against Rossi ter was extinguished by his own act in accepting and acting upon the surrender of the lease to him. His right to distrain upon Hessel, in the right of Rossiter, if that right subsisted in him after the surrender by Fritz, passed out of him by virtue of the new lease, which clothed Fritz with all the rights and remedies which his landlord had at the time the new lease was made, for the recovery of both the rent and the possession from Hessel. If any other right to distrain than those we have now considered could have been alleged by Johnson, it has not been suggested to us by counsel, nor by an examination of the facts presented. Hessel ought to pay his rent, if he has not; but, whether he does so or not, he has a right to object to the seizure of his goods by any person not authorized to make such seizure. If his position is a somewhat anomalous one, there is this to be said in his favor: he did not put himself in it. The acts of Johnson and Fritz, done in disregard of his rights, and appar
The judgment is now reversed; and judgment is entered in this court upon the case stated, in favor of the plaintiff.
Dissenting Opinion
noted his dissent.
Subsequently, counsel for the appellee filed a motion for a re-argument, accompanied by a brief contending as follows:
1. The transaction between Johnson and Fritz, after the latter had become assignee of the Rossiter lease, whereby a new lease was to be substituted therefor from a future date, November 1,1887, at most was but an agreement for surrender, and not a surrender per se. It required to be followed by a surrender of possession, to make it effectual. In Huddlestone v. Johnston, 1 McC. & Y. 143, it was expressly decided that an agreement for surrender, not followed by delivery of possession, does not amount to a surrender. To constitute a surrender, there must be both an agreement by the proper parties to manifest such an intent, and also a yielding up of the possession to him who hath the greater estate.
2. The surrender could not be made to the prejudice of the rights of Hessel as sub-tenant, and he had the option of either affirming or disaffirming it. By holding on to the possession he clearly disaffirmed the surrender and prevented it from becoming effectual; and having thus elected to retain his possession under the Rossiter lease, he is clearly estopped to say the same had been surrendered. Thus, the agreement for surrender, if such it was, came to naught, because the surrenderer or his sub-tenant failed to surrender possession of the premises at the time agreed on. It surely cannot be held that a landlord loses his rights under a lease by reason of an agreement on the part of his tenant to surrender, which agreement the tenant, or one claiming under him, fails to perform by insisting on retaining possession.
3. If, quoad Hessel, the Rossiter lease still existed, Hessel’s goods were certainly liable to be distrained thereunder. This, moreover, is res judicata, by the decision of this court in the appeal taken by Hessel from a judgment in ejectment entered
4. When the new lease was made to Fritz, either Hessel came under it or he did not. If he did, his goods of course became liable to be taken for Fritz’s rent. If he did not, and if it can be held that it was possible for him to retain his tenancy under his own lease in hostility to the lease to Fritz, then clearly his goods remained liable to be distrained on by Johnson for his own proper rent. In short, Hessel being in occupation as tenant, he was certainly liable to pay rent to either Johnson or Fritz. This is admitted. If liable to the former, his goods could be taken by Johnson. If liable to the latter, his goods could be taken by Johnson as Fritz’s landlord, for the rent of the entire premises under either the Eossiter lease, of which Fritz was assignee, or under the new lease, the rent being the same under each. In either case, the avowant was entitled to judgment.
On May 18,1891, the motion for a re-argument was refused.