153 P. 37 | Or. | 1915
Lead Opinion
Opinion by
“The general principle, very well settled in the books,” says Mr. Chief Justice Winslow in Bartelt v. Smith, 145 Wis. 31 (129 N. W. 782, Ann. Cas. 1912A, 1195, 1197), “is that a party to the cause will not ordinarily be appointed receiver unless both parties consent, or there are special circumstances present which make such an appointment clearly for the best interest of all concerned. The reason is that the receiver is an officer of court, whose business it is to administer his trust impartially for the benefit of all concerned, and hence he should have no special interests which might influence him in his conduct, of the-trust in matters where his interests and the interest of any party to the action may clash.”
The plaintiff herein, being a corporation, could act only by its agents, one of whom was Paul Dauschel, its treasurer. Though the defendants Anderson, Paget and Thacher consented to the appointment of a receiver, it cannot be said, from an inspection of the transcript before us, that they acquiesced in Dauschel’s selection, or waived any objection they might have had against him by reason of his interest in the subject matter of the suit as the plaintiff’s representative.
“It is immaterial in all cases whether or not a lease contains an express covenant of quiet enjoyment so far as the rights of the tenant are concerned. For a covenant of quiet enjoyment is implied in every lease for a term, by whatever form of words the lease is created. In other words, from the fact of the letting together with the entry by the tenant into possession with the consent of the lessor, it will be implied or presumed, not only that the landlord had a right to lease, but that he covenanted to secure the lessee against eviction by a paramount title, as well as against his own acts, which would destroy the beneficial enjoyment which the lessee expects to have of the demised premises”: 2 Underhill, Landlord & Tenant, § 427.
The legal principle thus asserted does not contravene the provision of our statute that no covenant shall be implied in any conveyance of real estate (Section 7105, L. O. L.), for a lease of land is not a conveyance within the meaning of this section, and hence every demise, unless expressly negative words are contained therein, embraces an implied covenant that the lessor will protect the lessee in the quiet enjoyment for the term of the lease; Edwards v. Perkins, 7 Or. 149.
“The order of a court of equity appointing a receiver and requiring a tenant to deliver possession to him, when he takes possession under it, as effectually ousts the tenant during the possession of the receiver as the execution of a writ of possession on a judgment at law; and the same effect must be given to it as a protection or defense to the tenant in an action 'by his landlord for rent accruing during such possession of the receiver.”
In Yuen Suey v. Fleshman, 65 Or. 606 (133 Pac. 803, Ann. Cas. 1915A, 1072), it was ruled that the election of the lessor to terminate a lease for the nonpayment of rent, and to eject the lessee, put an end to the term so as to release the tenant from liability for rent not due when he was ousted. Analogous to the principle invoked in the case at bar, it has been held that a receiver of a decedent’s estate, who takes possession of real property under a lease to the deceased, becomes liable, but not personally, for the rent of the premises, which compensation for such use must be paid out of any funds lawfully coming to his hands: 2 Underhill, Landlord & Tenant, § 666. The tenant herein having been evicted, no charge for rent subsequently accruing could have been legally impressed by the receiver upon the personal property described in the second chattel mortgage so as to augment the amount due when possession was taken. The sum of $3,000, so due at that time, limits the plaintiff’s recovery as against Elliott, the evicted tenant, and Anderson, the holder of his chattel mortgage.
The conclusion thus reached renders it unnecessary to consider whether or not the indorsers of the note held by Anderson are liable for the payment thereof.
The decree will therefore be modified in accordance with the view here expressed, and no disposition of the surplus of $2,000, if any remain after discharging
Modified. Rehearing Denied.
Dissenting Opinion
dissenting in part as follows:
The plaintiff bid $5,000 at the foreclosure sale; the amount of the judgment now awarded to the Northern Brewery Company is less than $5,000;-and the difference between the judgment and the sum bid would ordinarily be paid into court for distribution. Anderson alone appealed. Conceding that no one has a right to complain except the appellant, and assuming that the plaintiff is answerable to Anderson to the extent of any claim held by him, but not exceeding an amount representing the difference between the bid made by the Northern Brewery Company and the judgment obtained by it, then Anderson should, in my opinion, have a judgment against plaintiff for attorney’s fees, as well as for the balance of the principal and interest due on the note. If the amount bid by plaintiff, after crediting its judgment in full, was paid into court, then Anderson would unquestionably be entitled to have his judgment paid in full, or at least to the extent of the available proceeds; and the rights maintainable by Anderson should not be limited or curbed merely because the plaintiff is made directly accountable to Anderson.