24 W. Va. 493 | W. Va. | 1884
The only question really involved in this case is: Can a landlord, who either before or after rent is due takes from his tenant a negotiable note for the rent payable on time,before this negotiable note becomes due, distrain his tenant for the rent? The counsel for the defendant in error in argument insists, that the tenant Lucas in this case committed a fraud on his landlords, when he induced them on the 7th day of April, 1883, to take his negotiable note payable at a future time for the rent due on April 1, 1883. But the evidence as certified in the bill of exceptions by the court below fails to prove that Lucas committed any such fraud on his landlords. It is true that the evidence as certified does show, that on the very day that the landlords took this note from their tenant Lucas, he “executed a general assignment of his effects without any notice thereof to his landlords.”
It only remains to determine, whether or not the giving of the two negotiable notes by Lucas, one dated February 23, 1883, and 'the other March 23, 1883, for the rent due from him on January 1, and April 1, 1883, respectively suspended the right of the landlords to distrain till these negotiable notes became due and payable or whether the giving of these negotiable notes was a satisfaction of the rent. As the evidence shows that these notes were not expressly agreed, when they were received, to be absolute payment or extinguish*ment of this rent, it is clear beyond controversy that the receipt of these notes by the landlords of the tenant cannot possibly be held to be absolute payment or an extinguishment of the rent. See Miller v. Miller, 8 W. Va. 551, 552;
But though.it is clear, that the acceptance of these negotiable notes of Lucas the tenant by the landlords did not extinguish the rent due from Lucas, yet, it 'seems to me, it did operate as a suspension of the right of his'landlords to enforce the payment of this rent in any manner, till after the notes became due and payable. The cases in our own State above cited show clearly, that if instead of rent the claim against Lucas had been due by a simple contract whether in writing or not, the simple taking from him of notes payable at a future time for the debt due would have operated as conditional payment and have therefore suspended the enforcement of such debt, till the notes taken for it were due and payable, an agreement being implied from the mere acceptance of the note of a debtor payable at a future time, that the creditor would extend the time of payment of the debt, till the note taken by him should become due and payable. But of course to make this implied agi’eement binding on the creditor, there must be some consideration to support it. This is not expressly stated in these cases in our courts gen
The same conclusion, it seems to me, would follow, if a new bond was given for an old bond, the amount of the bond and the obligor or obligors in it being the same as in the old bond, and the new bond being payable on time and not bearing interest till it fell due. In such case, as the obligor or obligors in the new bond would be the same and would be bound in the same manner, so that the giving of the new bond could not possibly prejudice the obligors in it nor benefit the obligee, the implied agreement to extend the credit on the old baud would, it seems to me, be a nudum pactum and void, and therefore the old bond or debt might be sued upon, before the new bond was payable. But this could not be successfully done, if the new bond bore interest from its date; for this would be a sufficient consideration for the
If instead of a bond the creditor had a judgment against the debtor, and the debtor gave to the creditor a negotiable note for the amount of the judgment payable at a future time and not bearing interest till it was payable, I presume that the creditor would nevertheless have a right before the negotiable note became payable to issue an execution on his judgment and to enforce its payment. Eor this implied agreement on his part to give credit on his debt till the negotiable note was payable would, it. seems to me, be a nudum pac,turn and therefore null and void. Its nullity however does not, as is claimed, result from the fact that a judgment is 'of higher dignity than a negotiable note, but it results from the fact that the giving of the negotiable note is of no possible benefit to-the creditor and no injury or inconvenience to the debtor. Eor after the negotiable note becomes due all that the creditor could get would be a judgment for the amount against his debtor, and i¿iat fie already has. Nor is the debtor inconvenienced, because, though he could not make any defence against the negotiable note, if assigned before it was payable, yet in this he loses nothing, as he could make no defence against a judgment already rendered.
But if the claim of the creditor was a claim for rent, though it be a debt of higher dignity than a negotiable note, yet, it seems to me, the giving for such’rent by the creditor of his negotiable note for the amount of the rent, the note being payable at a future day, though it would be no satisfaction of the rent, yet it would operate to suspend the party’s right by distress or otherwise to enforce the rent, till the negotiable note should become due. This was expressly decided in the case of Judge & Dennis v. Fiske & Eager, 2 Speers (S. C.) 436. That case was like the one before us excepting only that the interest on the rent till the negotiable note became due was added in the giving of the note. But this circumstance could make no difference, as the reasoning of the court was in no manner influenced or affected by this circumstance. The court in that case held, that the giving
The counsel for the defendants in error insists, that this position is in conflict with Cornell v. Lamb, 20 Johns. 407, and Davis v. Gyde, 29 E. C. L. 166 and other cases which I have cited on page 497. But he relies especially on the two eases above named. In the first of these cases, Cornell v. Lamb, 20 Johns. 407, it was decided: “The acceptance of a bond for rent is not an extinguishment, even when the rent was reserved on a farol lease.” This decision it seems to me does not touch the question in the case before us. It is not even claimed that the giving of the negotiable notes in this case extinguished the rent, but only that it suspended the collection of the rent, till this negotiable note should become due, and this, for the reasons I have stated, I think it did. In the other case principally relied on by the counsel for the defendant iu error, Davis v. Gyde, 2 Ad. & Ell. 623 (29 E. C. L. 166), it was decided as set forth in the syllabus: “A promissory note given and received for rent does not extin.guish the claim for such rent, which is a debt of higher 'dignity than that arising from the note. Nor does the receipt of such note of itself suspend the right of distrain-ing. If the giving of such note be pleaded in bar to an avowry, it must be shown that the note was accepted in satisfaction; or that by special agreement or from other circumstances pleaded it suspended the right of distress.” Let us consider in what this decision varies from the views we have expressed, or from those of the South Carolina case which I have referred to, Judge & Dennis v. Fiske & Eager, 2 Speers 436. In so far as it holds that a negotiable note given and received for rent does not extinguish the claim for such rent, they are in perfect accord; and in so far as it decides that the giving and accepting of such negotiable note for rent due may by special agreement suspend the right of distress, it is also in perfect accord with my view and with the South
What possible object could the landlord and tenant have, the one in taking and the other in giving a negotiable note payable at a future day except simply to extend the time in which the rent was to be paid on the tenant binding himself to pay it -by giving for it a commercial security ? We have seen that it is perfectly well settled in this State, that the giving by the debtor of a negotiable note to his creditor payable at a future time would necessarily bo interpreted as an extension of time to the debtor. And it seems to me clear that we can not interpret otherwise the agreement of the parties simply from the fact that the precedent debt was rent. It docs not seem to me that the English court was justified in making this distinction. It is based on the peculiar favor,-in which the right of distress is held in Englaud ; but if such a distinction exists in England for this reason, it ought not to exist in this State, 'where so much peculiar favor is not extended to the right of distress, as is extended
But it is claimed, as it was in the last cited English case, that the tenant has not sufficiently set up this defence. To the motion on the forthcoming bond in this case the defendants filed uo writteu plea; and no written plea need be filed to a motion on a forthcoming bond. The pleading in such case may be and usually is by parol; and this of itself would prevent any mere technical advantage of this sort being-taken, provided the record shows, as this record does, that the parties had full knowledge of the questions in controversy, and no point of this character was made iirthe court-below. See McKinster v. Garrett et al., 3 Rand. 554. The oral pleas in this case were: “That the distress, on which the bond was given, was for rent not due;” and also “payment and set-off.” The two negotiable notes were filed as the account of payments and set-off. It is therefore obvious, that the plaintiffs below had full notice of the character of the defence of the defendants; and this is all that can be required, when the proceedings are summary and the pleadings merely oral. Even had this been a regular action of debt brought for a debt of any character, and the plea of payment had been put in by the defendant, when his real defence was that the plaintiff had accepted his note as conditional payment,
For these reasons I am of opinion that the circuit court erred in the judgment it rendered in favor of the plaintiffs, and that this judgment must be reversed and annulled; and the plaintiffs in error must recover of the defendant in error their costs in this Court expended; and this Court must enter up such judgment as the court below should have done, -which must recite that the acceptance by the plaintiffs of the two negotiable notes of Lucas, dated respectively February 23, 1883, and March 23, 1883, filed in this case operated as a conditional payment of.the rent due from Lucas to the plaintiffs below, and the distress warrant, under which the forthcoming bond in this case was taken, having been issued and levied before either of said negotiable notes was payable, the same was prematurely issued, and for this reason the said forthcoming bond must be quashed, and the obligors in it, C. Y. Lucas and P. B. Dobbins, must recover of the plaintiffs below, Theodora Iiornbrook and Charles P. Hornbrook, their costs about their defence in the circuit court of Ohio county expended, which must be certified to said circuit court.
Reversed.