Jones v. Clark, 20 Johns. 51

Jones v. Clark

20 Johns. 51 | N.Y. Sup. Ct. | 1822

Spencer, Ch. J.,

delivered the opinion of the Court. The points made by the comisel for the plaintiff in error, are, 1. That there was no sufficient evidence that Jones held under Clark and Stewart.

2. That Bowel was an incompetent witness.

3. That the matters shown by the defendant below, were a complete defence.

The first and second points may, at once, be disposed of. There was complete evidence of the hiring of the premises, *61by Jones, for the second year. Howel was a competent witness to show that he had no beneficial interest in the expired lease, though the fact itself was no wise material. The cause depends on the third point; and it presents this question, whether a tenant of the mortgagor in possession, and who became such subsequent to the giving the mortgage, can, in a suit by his landlord, the mortgagor, set up as a legal defence, that after the mortgage became forfeited, he attorned to the mortgagee, and took a lease from him, during the continuance of the lease from the mortgagor P This case has probably been decided in the Court below, on the authority of the case of M‘Kircher v. Hawley, (16 Johns. Rep. 289.) The principle decided in that case was this: that a mortgagee could not distrain for rent becoming due under a lease made by the mortgagor subsequent to giving the mortgage, because there was no privity of estate or contract between the mortgagee and such a tenant; and we held, that to enable a party to distrain for rent, he must have a concurrent right to maintain an action for the rent: and if there was no privity of contract or estate, an action could not be maintained.

When the plaintiff in error attorned to the mortgagees, and took a lease from them, their title to enter under their mortgage was complete; for the day of payment having passed, the condition was broken, and the estate of the mortgagees was absolute at law. This case, then, presents a very different question from the one decided in M‘Kircher v. Hawley. There, the point was, whether the mortgagee could distrain, or, in effect, sue for the rent. Here, it is, whether the tenant of the mortgagor could not, by his own act and consent, become the future tenant of the mortgagees, without any disloyalty to the mortgagor. “ At common law,” says Mr. Butler, (in note 272 to Co. Lit. 309. a.) “ attornment signified only the consent of the tenant to the grant of the seigni ry; or, in other words, his consent to become the tenant of the new lord.” He goes on to show the operation of the statute of quia emptores, and the statute of uses, and the statute of wills; and - observes, that the necessity and efficacy of attornments have been almost totally taken away by the statutes of 4 and 5 Anne, c, 16., *62and 11 George II. c. 19. These two statutes have been tQenacted here. The former does not relate to this case, but the latter has an important and decisive bearing upon it. The 28th section of the statute concerning distresses, rents, and the renewal of leases, (1 N. R. L. 443.) after reciting that the possession of estates is rendered precarious by the frequent and fraudulent practice of tenants attorning to strangers, by which means landlords and lessors are turned out of possession, and put to the difficulty and expense of recovering possession by suits at law, enacts, that every such attornment shall be null and void, and the possession of the landlords or lessors shall not be deemed to be, in any wise, changed by any such attornment •, with a proviso, that' nothing therein contained should extend to vacate or affect any attornment made pursuant to and in consequence of any judgment at law, or decree or order of a Court of equity, or made with the privity and consent of,the landlord or lessor, or to any mortgagee, after the mortgage is become forfeited.

The mischief which the statute was intended to remedy, was the attornment by tenants to strangers claiming title and without the proviso, the construction of the enacting part of the statute would have admitted of no doubt. But to remove every doubt, the legislature have declared who were not strangers, and to whom the tenant might lawfully attorn; he may attorn to a mortgagee after the mortgage is forfeited. The reason of this is obvious. The mortgagee, as between him and the mortgagor, has the right of entry, and is entitled to the possession of the premises. If, then, the tenant will do voluntarily what the law will coerce him to do, yield up the possession to the mortgagee, it is not an act injurious to the just rights of the mortgagor, nor disloyal towards him. Indeed, the rights of the tenant also require that he should be allowed to do so; for if he refuses to attorn, he at once subjects himself to eviction, and the payment of costs. The statute makes no difference between a tenant to the mortgagor, who becomes so before or after the execution of the mortgage. It applies to every tenant of the mortgagor, without reference to the time when he became tenant. The reason is the same in both cases, and *63they are both embraced by the proviso of the statutes; and neither of them are within the mischiefs intended by the enacting part of the statute.

Judgment reversed, and a venire de novo to be awarded in the Court below.