84 N.J.L. 128 | N.J. | 1913
The opinion of the court was delivered by
This appeal was ordered to he dismissed for failure of the appellant to comply with rule 90 of this court, adopted June 4th, 1907, providing that “in all appeals taken from judgments rendered in District Courts the appellant shall, within ten clays from the expiration of the time limited by the statute for the giving of his notice of appeal, file with the clerk of the Supreme Court a brief specification of the determination or directions of the District Court with respect to which lie is dissatisfied in point of law, a copy of which shall, upon the argument of the appeal, be furnished to the court with the state of the case and the copy of the judgment record, and the appeal shall he heard and determined solely upon the points of law so specified.” Subsequently, on application made on behalf of appellant and for special reasons deemed satisfactory by the court after argument, the appellant was permitted to file out of time the required specification, and the appeal was thereupon reinstated. We have deemed it proper, as an intimation to the bar, to quote and comment on the rule, which does no more than require what has always been required by way of assignment' of errors in
Coming now to the merits of the appeal: The suit was in replevin to recover possession of goods of plaintiffs seized under a distress warrant made by defendant. The point in dispute is whether plaintiffs were tenants to defendant at the time of the distress. If so, the money that plaintiffs owed defendant (as the court could find under the evidence), was unpaid rent, the distress was lawful, and the judgment for defendant was correct. The controversj’' turns on the existence or non-existence of the relation of landlord and tenant.
The evidence shows that about November 10th, 1911, one Crossley as -attorney in fact rented a store property to the parties to this' suit by a written lease, describing himself as party of the first part, and Norman J. Jacobs (the defendant) and Morris Sentliffer & Company (the plaintiffs), party of the second part, for an indefinite term, rent payable on the 15th of each month, and fixed at $625 a month. The arrangement between the Sentliffers and Jacobs was that Jacobs
Under the original arrangement, and until the January reduction, it seems plain that the parties were tenants in common of an estate for years. At common law it would have been a joint tenancy, whether the estate were for years or of freehold, unless expressly specified as a tenancy in common. 2 Bl. 179. Our statute of 1812 reversed this rule and provided that “no estate ” should be considered an estate in joint tenancy unless it were set forth in the grant or devise creating such estate, that a joint tenancy was intended. Rev. Stat., p. 650; Rev., p. 167; Gen. Stat., p. 1880. This act being classified by compilers under the title “Conveyances” was reenacted in the revised Conveyance act of 1898 as section 15. Pamph. L. 1898, p. 675; Comp. Stat., p. 1538. Whether this section is lawfully covered by the title of that act is immaterial, for if not, the constitutional infirmity extends also to the specific repealer (Pamph. L. 1898, p. 711), and the old act remains in force. Bouvier v. Railroad Company, 38 Vroom 281; see Lauter & Co. v. O’Toole, 48 Id. 29. The act of 1812 is as broad as the rule which it was intended to change, and may be considered, notwithstanding the words “grant or devise” as applicable to estates for years, though each tenant in this case was clearly bound to the landlord for the whole rent. 24 Cyc. 917; 18 Encycl. L. (2d ed.) 607. Whether they were joint tenants or tenants in common is probably unim
The difficulty in the case arises from the peculiar language of the finding by the trial judge. There was a stenographer below, and consequently the state of the case consists of the stenographic transcript, and the findings of fact must be gathered from the judge’s oral decision. He said:
“The original lease was not surrendered at any time to Mr. Crossley, either in writing or by operation of law, so I feel clear that Mr. Crossley is still the landlord and that they are tenants in common. The question is whether the agreement which they made between themselves designating the parts of the premises which each should occupy, fixing the proportion of the rent which each should pay, fixing the term of the tenanc}r and fixing also the time of payment—*133 the question is whether that constitutes a lease as between themselves. It seems to me in accordance' with the general principles of law to hold that such a setting apart of portions of the premises by the tenants in common, fixing the terms, amount of rent, &c., was practically a subletting of that part of the premises. Certainly, each tenant had, under the lease, the right to the whole premises, and when he gave up that right he gave to the other tenant the exclusive tenancy. 1 don’t see why that does not create the relation of landlord and tenant, just as much as between two strangers, although it is not so clear a case. As a matter of fact Jacobs paid $500 for the rent and Sentliffer did not pay Jacobs his proportion of it; and I hold that Jacobs had a right to distrain on the goods of Sentliffer, and therefore give judgment in this case for the defendant.”
It will be noted that he finds that the original lease was not surrendered, and that the relation of landlord and tenant arose, not out of a new lease to Jacobs alone and a sublease by him to Sentliffer, but out of a continuance of the original lease at a reduced rent and a new apportionment of that rent as between the parties. This finding of fact was also open to the judge on the evidence before him, and is not reviewable here. But on such a finding the judgment has in oxxr view no legal support. The rule applied seems to have been that in case of a letting to two lessees, jointly; or in common, each being liable for the whole rent, but as between them each being responsible for a specified part of it, the tenant that pays it all becomes the landlord of the other and may distrain for what he has advanced for him on aecoxxnt of rent. If this be so, then if the Sentliffei’s had paid all the April rent, they could have distrained on Jacobs’ goods for his share of it, and either tenant would thus become the landlord of the other upon advancing the whole rent. Such a situation woxxld be absurd. The fact, if it be a fact, that Jacobs agreed with Sentliffer to pay all the rent in the first instance has no bearing . on the legal situation. It was evidential, as already pointed out, that Jacobs sxxblet to Sentliffer; but it was not conclusive, and the coxxrt found he did not so sublet in fact.