58 N.Y. 323 | NY | 1874
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *325
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *326 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *328 The general proposition upon the merits attempted to be maintained by the learned counsel for the relators, is that the conventional relation of landlord and tenant did not exist between them and the respondents, and never did exist between them and the respondents' testator, and this is predicated upon the assumption that when Joseph R. Stuyvesant entered into possession of the demised premises the rent became extinguished and the covenants discharged, and that the subsequent purchase by the relators under the foreclosure proceedings was of the unexpired term, free from any agreement or liability to pay rent.
Joseph R. Stuyvesant occupied a double relation to Browning and Moore, the original lessees, and to the premises. He was lessor of the greater part of the premises and mortgagee of the lease and term. He took possession, as appears from the evidence, under a warrant of dispossession against Browning and Moore. But suppose he was in possession both *329 as lessor and mortgagee, what then are the consequences in connection with subsequent events? It is said, if in as mortgagee of the term, he occupied the position of assignee and took the estate cum onere. (5 Wend., 617.) This is doubtless, in general, true, but in that case the mortgagor had an equity of redemption, and the mortgagee a right to foreclose such equity. So, if the landlord was in under a dispossession warrant, the tenant, his assignees or personal representatives, could pay the rent in arrear and hold the premises according to the terms of the original demise. (Laws of 1842, chapter 240.) In either case there was a right of redemption. On the one hand the landlord's right to the premises was not absolute, nor were the lessees' rights, either as tenants or mortgagors, entirely cut off. They could pay the rent and the mortgage debt, and be restored to their original rights. In this condition of affairs Stuyvesant foreclosed his mortgage, and the relators became the purchasers at the foreclosure sale, and the question is, what they purchased. They claim that they purchased the use of the premises for the unexpired term, free from the obligation to perform the covenants in the lease, and from the payment of rent. The respondents claim, in effect, that they purchased the lease subject to the payment of rent. There is a want of precision and definiteness in the foreclosure proceedings which have probably contributed to the litigation between the parties, but we must give them a reasonable construction, with a view of carrying out the intent and purpose of the parties. It cannot be successfully claimed even if the landlord was in possession as mortgagee, that he could not foreclose and sell the lease subject to the payment of rent, and the performance of the other covenants, and this irrespective of the technical obligations assumed in taking possession. In fact such would be the natural result of the transaction. The mortgage is of the lease, and of course subject to payment of rent, and the sale would legitimately be of the thing or interest mortgaged, even if the mortgagee, when he happens also to be the lessor and in possession, might sell an absolute term free from rent. *330 Looking at the proceedings in this case, we find, in the first place, that the mortgage recites the lease to Browning and Moore, and also a lease from another party to them, of premises adjacent to those in question, and the indebtedness to Stuyvesant, and then follows the granting clause describing the premises, and specifying all the estate and right of the party to the term of years unexpired, and also the said indentures of lease, "subject nevertheless to the rents, covenants, conditions and provisions in the said indentures of lease mentioned."
The complaint simply described the mortgage as conveying the premises "with the leases and terms of years yet unexpired of the said Browning and Moore." The demand for judgment was, that all persons be foreclosed of all equity of redemption, in the "said mortgaged premises," and that the same be sold, etc. The relators answered, setting up a lien under the mechanics' lien law, which, although filed after the mortgage, was claimed to be prior in equity. After the usual order of reference to ascertain the amount due, the court rendered judgment, holding that the answer did not contain a defence. The judgment ordered a sale of the premises, and out of the moneys arising therefrom, directed that the sheriff should deduct his fees, and any liens for taxes or assessments, "all rents due by the defendants Browning and Moore upon the leases mentioned in the mortgage," the plaintiff's costs, and then the amount reported due upon the mortgage. The description of the premises by metes and bounds is followed by the same clause above quoted in the complaint as to the leases and unexpired term. The deed contains the same clause: habendum clause, "for the full end and term of years yet to come and unexpired of the said Joseph G. Browning and Jacob W. Moore." It would have been more definite if the clause in the mortgage had been inserted, that the term conveyed was subject to the payment of rent, etc., specified in the leases, but by implication, this is the legal effect of the transaction. The leases and term were mortgaged, the complaint prays for the sale of the *331 premises and leases mortgaged, the judgment directs the sale of the leases with the premises, and the deed transfers the same. The sale was of the thing mortgaged, nothing more and nothing less, and that was the leases, subject to rent. The relators were parties to the foreclosure suit, and knew all the facts. If anything more was intended we must presume that it would have been expressed. By the purchase the relators became the assignees of the leases and term, and they took them with the correlative obligations. The obligation to pay rent had not been released or extinguished so as to discharge Browning and Moore or the purchasers under the foreclosure. At most the obligation was only suspended until the sale, and then revived. The obligation was a part and parcel of the leases purchased, and rendered the relators liable for its fulfillment. This result is confirmed by the facts stated in an affidavit of one of the relators, found in the record, that buildings to the value of $50,000 had been erected on the property, and that the use of the premises exceeded the rent received in the leases. The purchase being for $30,000, considerably less than the amount of the rent for the unexpired term, renders it highly improbable, to say the least, that the intention was to either sell or purchase, discharged of rent, and we can perceive no ground for maintaining that such was the legal effect of the transaction.
It is urged that the provision in the foreclosure judgment for deducting from the moneys realized in the sale the amount of unpaid rent was an error; that it was not claimed in the complaint, and that such rent was not a lien. The judgment was affirmed in the Commission of Appeals,* and is not before us for review. It must be deemed valid and binding in every respect. Whether strictly regular or not, the effect of the judgment and sale was to give the relators the benefit of a redemption of the lease under the statute, as well as a redemption under the mortgage. They occupied, after the sale, precisely the position as to the premises which Browning and Moore would have occupied if they had paid the *332 rent in arrear, and the mortgage debt. In an action of ejectment by Stuyvesant against the relators, it was held that the former was estopped from denying the existence and validity of the lease after the sale, and the right of the latter to the same, subject to the payment of rent. (12 Abb. [N.S.], 6.) The General Term, in this case, and also in a similar proceeding previous, held that, by the sale, the forfeiture under the lease was waived. The conclusion arrived at, in every instance where the question has arisen, is the same, viz., that the relators, by the purchase, became assignees of the lease, and as such liable for rent.
It is objected that the justice of the District Court before whom these proceedings were commenced had no jurisdiction, because the premises are not located in his district. Chapter 189 of the Laws of 1863, to amend the Revised Statutes in relation to summary proceedings, restricted the jurisdiction of these justices to cases where the premises were located in the same district. This act was superseded by chapter 741, of the Laws of 1870, entitled "an act to amend the Code of Procedure," by giving these justices jurisdiction in cases throughout the city of New York; but it is claimed that this statute violates that provision of the Constitution requiring private or local bills to contain but one subject, which must be expressed in the title. (Const., art. 3, § 16.) I agree with the appellants' counsel that the provision in question is local, standing by itself. It relates exclusively to the officers and property in a definite local division of the State, and to persons owning property there. (
It is claimed that the respondents could not institute these proceedings jointly, that the rent was apportioned by the testator, or at all events that there was no default until they were apportioned between the respondents. It is very clear that Stuyvesant did not apportion the rent. All his real estate, and the residue of all his estate, he devised and bequeathed to his son Nicholas, who is represented in this case by Dudley, and the leasehold interest in two of the lots went to the executor as personal assets under the statute, only for purposes of administration. (2 R.S., 83.) There is not a word in the will indicating an intent to apportion the rent among the several lots. On the contrary the inference is that the interest in the entire lease was intended to go to the son. Apportionment, in cases where it is permitted, is for the benefit of the owners of the rent or the reversioners. Ordinarily it is against the interest of tenants, and the omission to apportion is not a matter of which they can complain. If the several owners of a lease are disposed to treat it is an entire contract, the tenant cannot object and insist that it shall be divided into several contracts, unless something has transpired to relieve the tenant from a just liability to pay the whole rent. This general principle is deducible from the cases upon the subject. (2 Kent's Com., 469; Bacon's Ab., tit. "Rent," m.p. 517; 2 East, 575; 15 Wend., 464, and cases cited.) Though tenants in common or joint owners may apportion in certain cases, they are not obliged to do so. (5 T.R., 246.) There is an apparent impropriety in putting the heir and executor into possession of the whole premises, but this results from the joint ownership of the lease. They *334 both represent the lessor as landlord. The statute provides for removing any tenant for non-payment of rent, and that "any landlord or lessor, his legal representatives or assigns," may make an affidavit, etc.
We think that there is sufficient unity of a right to possession, as joint owners of the lease and representatives of the lessor, to justify the proceedings in the form in which they were commenced. (6 Paige, 390.) Indeed without an apportionment, which as we have seen they were not obliged to make, no other mode could be adopted. The tenants cannot be injured. They were obliged to pay the rent, and there is no dispute but the respondents represent the whole interest of the lessor in the lease, and for the purposes of these proceedings they must be regarded as the landlord. At all events the relators having by a failure to pay rent incurred the penalty of removal they should not be permitted to interpose the technical objection involved in this point. As to the question of interest, the landlord was entitled to interest from the time of the default in not paying the rent when it became due.
It was an incident to the principal debt, and the proceedings are not invalidated by the demand of rent with interest. (See 33 Barb., 46.)
Substantial justice has been done by the judgment of the Supreme Court, and it must be affirmed.
All concur.
Judgment affirmed.
