7 Md. 368 | Md. | 1855
delivered the opinion of this court.
We can only decide the question submitted to the court below upon the agreement on which the case was tried, and that is, whether Thomas O. Martin, the tenant, was liable to
There can be no doubt that the assignee of a reversion is entitled to the rent falling due after the assignment, where there is no reservation of the rent; “ the reason whereof is, that the rent is incident to the reversion, and passeth away by the grant of the reversion.” Coke Litt., secs. 215, 348. Shep. Touch., 89. Gilbert on Rents, 67. And according to the fifth rule in Spencer’s case, (3 Coke, 16; Smith’s Lead. Cases, 22;) the purchaser at a sheriff's sale must be deemed an assignee in law. It is there said: “The same law is of tenant by statute merchant or statute staple, or elegil of a term, and he to whom a lease for years is sold by force of any execution, shall have an action of covenant ill such a case as a thing annexed to the land, although they come to the term by act in law.” Comyn on Landlord & Tenant, 250. There seems to be as good reason for regarding the purchaser of the reversion, also, as assignee, and entitled to all incidents of the landlord’s estate which he may have bought under the execution, and it has been so adjudged.
It is clear, upon the authorities, that the lessor cannot claim the rent falling due after eviction of the tenant by a purchaser at sheriff’s sale, under a judgment entered before the commencement of the tenancy. This was expressly decided in Day vs. Austin, Croke Eliz., 398, where, to an action of debt for rent, the defendant pleaded, that before the lease, a judgment had been given against the landlord, and that after the lease the land was extended and delivered in execution by elegit, before which extent there was nothing in arrear, and on demurrer the plea was sustained. See also Playne’s case, Croke Eliz., 47. These cases are cited in most of the elementary works on this subject as authority for the doctrine, that eviction of the tenant by title paramount, will, as between the lessor and lessee, discharge the liability for rent falling due afterwards, for the reason, that the enjoyment of the land being the consideration for the rent, when the tenant is removed the obligation to pay rent ceases, though he shall be responsible
But (he question here is, whether the purchaser, under a judgment rendered before the lease, is entitled to the rent falling due after the accrual of his title? Upon this point, we think, there can be no ground for doubt. The purchaser’s right was expressly affirmed in the case of Bank of Pa. vs. Wise, 3 Watts, 394, where the judgment against the landlord was obtained after the commencement of the lease. The only other points of difference between the cases is, that in the one before us, the tenant had accepted the orders of the landlord drawn on the rent when due. The case is fully discussed and the authorities referred to, for the purpose of showing that assignees in law, as well as those in deed, are entitled to the rent as incident to the reversion, and goes with it. Coke Litt., 215, b. It is considered as following the reversion and belonging to it until actually and completely payable, and on this ground it is, that where the lessor dies before the rent becomes due, it goes to the person entitled to the estate out of which it issues; but if he dies afterwards, the executor or administrator is entitled to it. Comyn, 226. Crabb, 199.
Rent, cannot be apportioned in respect to part of the time, except as provided by statute 11, Geo. 2, ch. 15, sec. 19, which does not apply to this controversy. Clun’s case, 10 Coke., 128. Comyn, 129. Crabbe, 223. 3 Kent's Comm., 469. In Delaware, however, a different rule prevails, under an act of Assembly. Stayton vs. Morris, 4 Harr., 224. The consequence of the common law doctrine is, that, in cases not within the statute of George, when the title of the landlord expires, the tenant is liable to pay no person at all for the previous time, unless a claim can be enforced in behalf of the assignee of the reversion. That this may be done where the claimant is a purchaser at sheriff’s sale, under a judgment rendered after the lease, we have seen; and if the same result does not follow a purchase under a judgment obtained before the lease, so as to give the whole rent to the purchaser, he would
We are next to inquire, whether the circumstance that the tenant accepted the orders of the landlord for part of the rent, before it was payable, takes the case without the operation of the principles above slated? We do not perceive that the plaintiff, as assignee of so much of the rent, occupies any better position, as against the purchaser, than the landlord himself would, if these orders had not been given. He must be presumed to have had knowledge of the judgment, and of its legal consequences, if enforced. The defendant, in a judgment binding his land, cannot create liens to the prejudice of the plaintiff. All persons dealing with him in reference to the land, acquire rights, if any, in subordination to the judgment lien. It cannot be maintained, that a debtor so situated, may, by making a lease, and anticipating the payments of the rent, affect the value of the plaintiff’s security for his debt. If such an arrangement were made for the purpose of defeating the recovery of the plaintiff’s cLaim, the fraud would avoid it. But such a lease might be made in good faith. The defendant might deem himself—nay, he might in fact be—able to pay the judgment debt, and design to satisfy it out of other means, and fail in his honest and reasonable expectations. Fraud coukl not be predicated of such a case ; but would the lease stand against the judgment lien? Surely not. The principle is the same, whether the tenant is in under a long lease, or renting from year to year.
We think that the argument on the part of the appellant overlooks the interest of the judgment creditor, and his relation to the matter in controversy. It is true that the sheriff’s sale substitutes the purchaser in the place of the landlord ; but as of what time ? Not only as of the time of the sale, but as to
The payment of rent in advance, even if these orders and acceptances are to be taken as payment joro tanto, will not protect the tenant from the effect of the execution and sale. The purchaser is entitled to possession, notwithstanding the payment. He may turn him out and disaffirm the lease, in which event the tenant, as we have seen, will go free altogether, by reason of the eviction under a superior title. But here there was no eviction. Salmon vs. Smith, 1 Wms. Saund., 205, and note. Bennet vs. Bittle, 4 Rawle, 339. The arrangement between the tenant and the purchaser was not an ouster or éxpulsion of the latter. If it was constructively an eviction, it was only temporary, and there are authorities to show, that where the tenant returns and occupies the premises, even after an actual ouster, the right to the rent, once suspended, is restored. Hunt vs. Cope, Cowp., 243. 1 Selw. N. P., 432, 500. Cibels vs. Hill, 1 Leon., 110. It was held, in 4 Rawle, 344, as the result of an unbroken chain of authorities, that an entry, without expulsion of the lessee, will not produce a sus
The principles of apportionment, particularly as applicable to rent, are discussed, and the authorities collected, in the notes to Smyth’s case, 1 Swanst., 337. We consider the rule established, that, with the exception of cases arising under the statute of George, rent cannot be apportioned as to time, and that the person entitled to the estate when the rent falls due, must have the entire amount payable at that time. Even in a case within the equity of the statute, where rent had been actually paid by an under-tenant to his lessor, a tenant for life, on the day it became due, and the lessor died on the same day, his executor was held to account with the remainder-man for what was so paid to his testator, on the ground that the lessor had no remedy, before his death, to compel payment, and the rent, therefore, passed to the next owner of the estate. Lord Rockingham vs. Penrice, 1 Peere Wms., 177. Salk., 578. 1 Swanst., 346. The decree in that case declared that, as to the tenant who had paid the rent before it became due, it was a good payment, because the lessor lived until the rent-day, and that his executor must make the same good to the person entitled in remainder. It follows, that if the lessor had died before the rent-day, the payment to him would not have discharged the tenant, on the principle that the lessor’s interest must continue until the rent falls due, to entitle him to receive and retain it.
We must presume that the purchaser, in this case, bought the land with reference to, and in reliance upon, the obligations of the tenant, and his own rights as vendee, and in accordance with what we take to be the rules of law by which these are to be ascertained, the judgment must be affirmed.
Judgment affirmed.
