McKeon v. Whitney

3 Denio 452 | Court for the Trial of Impeachments and Correction of Errors | 1846

Lott, Senator.

[After stating the facts and examining the evidence to show that the defendant had been proved to be the assignee of the lessees in both leases.] The defendant having thus been shown to be an assignee, was liable to the plaintiff in an action of debt for the rent which accrued on the lease specified in the first count, during the time he remained possessed of the term thereby demised. Kent, in his commentaries, says: “ The assignee of the lessee is liable to the assignee of the lessor in an action of debt for the time he holds—for though there is no privity of contract, there is a privity of estate, which creates a debt for the rent.” (4 Kent, 96.) And Archbold lays down the rule that if the lessee have assigned his term, the lessor or assignee of the reversion may have debt or covenant against the assignee of the term. (Archb. Land, and Ten. 140. See also Com. on Land, and Ten. 425,426; Howland v. Coffin, 9 Pick. 52; 1 Saund. 241, c.; Walker's case, 3 Co. 22; 1 Chitty's Pl. by Dunlap, 3d Am. ed. 112; id. 353; Lekeux v. Nash, Str. 1221.)

It is also well settled that where there is a demise without deed, the landlord may recover an equivalent for the use and occupation of the demised premises by an action of debt. Selwyn says, “ In case of a demise not by deed, the action of debt for use and occupation has been substituted for the ancient mode of declaring in debt for rent.” (1 Sel. N. P. by Wheaton, 451.) And Mr. Starkie, in his work on evidence, lays down the rule that “ debt lies for use and occupation generally at common law,” but " assumpsit for use and occupation depends upon the statute.” (4 Stark, on Ev. 1511. See also Woodf. Land. and Ten. 328; Chit. on Cont. 107; 1 Chit. Pl. 102; 2 id. 224; Wilkins v. Wingate, 6 T. R. 62, and n. b.; King v. Frasier, 6 East. 348: Egler v. Marsden, 5 Taunt. 25.) This question has received a full discussion and careful examination in Gibson v. Kirk, (1 Adol. & Ellis, N. S. 850.) There the objection was taken at the trial that debt for use and occupation did not lie where there was an actual demise; but it was overruled by Alderson, B. and his decision on a motion for a new trial was sustained. Lord Denman, after reviewing the cases, concludes with this observation : “ When the courts once established that debt for use and occupation would lie, no sound reason can be assigned why it should not be applied to all cases of demise not under seal, as it undoubtedly has been for a long series of years.” (See also Wilkinson v. Hall, 3 Bing. N. C. 508.) It may therefore be considered as established that debt for use and occupation is maintainable under such circumstances.

This rule is general, and there is no ground for the position urged on the argument that it is applicable only to the original parties to the lease. The defendant, in this form of action, is charged in respect to his occupation merely, and not on the demise. (Com. on Land. and Ten. 431, 433.) It is indeed necessary to support the action that the relation of landlord and tenant should be established, and the demise may be used as evidence for that purpose. By it the right of occupancy is given to the lessee, and this right is, by virtue of the assignment, transferred to the assignee. He comes into the place of the lessee as a tenant of the lessor, with all the rights and liabilities incident to the relation of landlord and tenant while he continues sujh assignee. (Archb. Land. and Ten. 69, 70. See also Coles v. Marquand, 2 Hill, 447, 449 ; West v. Cartledge, 5 Hill, 488, 489.) When, therefore, he enters into possession, it is with the permission of the landlord, and there is no reason in principle why an action should not be maintained against him for his use and occupation of the demised premises during the continuance of his tenancy, in the same manner and in the same form as if he had been the original lessee. Nor does the distinction referred to appear to be supported by authority. Arch-bold, on the contrary, expressly says that the action will lie by the lessor against the assignee of the term, (p. 148, 150,) and I have found nothing in conflict with his position. In Wilkins v. Wingate, above cited, the question arose on a demurrer, and it was held that debt would lie for use and occupation generally; and the reasoning of Lord Denman in Gibson v. Kirk applies as well to an occupation by an assignee as by the original lessee. See also Ibbs v. Richardson, (9 Adol. & Ellis, 849.) where the action was in debt against an assignee of a term holding over.

Assuming then the rule to be general, I have no doubt of the defendant’s liability. His occupation was fully established by the evidence which has been already referred to for the purpose of showing him an assignee of the terms demised.

It remains then to be considered whether the proceedings under the statute, by which the defendant was dispossessed, barred the'plaintiff’s right of recovery for the rent previously accrued. This question was distinctly presented to the supreme court in Hinsdale v. White, (6 Hill, 507.) The whole subject was elaborately and very ably examined, and the views presented by the court appear to me so sound and conclusive that any effort on my part to add to their force would be futile. It is sufficient to say that I concur in those views and in their construction of the statute, the result of which is declared to be as stated by President King, of a like statute in Pennsylvania, that “ the landlord undoubtedly has his remedy for the recovery of his rent, although he may be thus repossessed of his property, and he may prosecute it as he could any other claim in the suitable and appropriate forum.” (Rubicum v. Williams, 1 Ashm. 235.) The same principle is established in Hartshorne v. Watson, (4 Bing. N. C. 178.)

There is no color for treating the proceeding in this case as an eviction by the landlord without legal process. The officer putting him in possession acted under a judicial warrant, regular on its face, issued by an officer who had acquired jurisdiction of the subject matter, and whose judgment cannot be collaterally impeached in this action, and for whose acts the plaintiff cannot be held liable. But if it were otherwise, it would not affect this suit. The fact is wholly immaterial. The re-entry did not take place until the fourteenth day of May, 1842, which was after the rent in question became due. If, therefore, it be considered an eviction, it could only suspend the accruing rent, and did not discharge that which had previously accrued. (Salmon v. Smith, 1 Saund. 204, and note 2; Gilb. Ev. by Loft, 335; Bac. Abr. tit. Rent, l; Pendleton v. Dyett, 4 Cowen, 581; Archb. Land. & Ten. 144, 155; Cruise’s Dig. 28, tit. Rents, ch. 3, §§ 1, 2.)

In the course of the trial, Reywood, one of the lessees in the unsealed lease, was released by the plaintiff to qualify him to be sworn as a witness, and it was thereupon insisted that this act discharged the defendant from his liability for the rent mentioned in that lease. I am of opinion that no such effect was produced. The defendant was liable only on account of the privity of estate, and for his use and occupation of the premises. That liability was entirely distinct from that of Reywood, who was liable only on his contract.

Upon every view of this case I am satisfied that the judgment is right, and ought to be affirmed.

Spencer, Senator, also delivered a written opinion in favor of affirming the judgment, upon the same grounds stated in the opinion of Senator Lott.

On the question being put, “ Shall this judgment be reversed ?” all the members of the court present, who had heard the argument, viz: The President, and Senators Barlow, Emmons, Hand, Hard, Johnson, Lott, Mitchell, Porter, Sanford, J. B. Smith, S. Smith, Spencer, Talcott, Wheeler and Wright, (16,) voted in favor of affirmance.

Judgment affirmed.