9 Paige Ch. 427 | New York Court of Chancery | 1842
If there was any equity in the complainant’s bill in other respects, the allegation that there is no sufficient distress on the demised premises to pay the arrears of rent is not sworn to in such a manner as to authorize the issuing of an injunction. This was a fact susceptible of positive proof, by resorting to the ordinary mode of testing it by an actual distress. Again, it was not necessary that there should be sufficient to pay the whole rent due for the five lots. For as the lots were leased separately, if there was a sufficient distress on either to pay the arrears of rent due on that particular lot, the
Again ; if the complainant elects to proceed at law to enforce the forfeiture of the lease, for the non-payment of the taxes and assessments, he cannot in the meantime treat the lessee as his tenant and righfully in possession of the premises, so as to obtain an equitable claim to the accruing rents by virtue of his lease. For by bringing an ejectment suit for the forfeiture, he has chosen to treat the lessee and his sub-tenants as trespassers, from that time. The claim to the accruing rents, therefore, is wholly inconsistent with his proceeding at law to enforce the forfeiture. Indeed, the receipt of any rent which had accrued after the breach of covenant upon which his ejectment suit is founded, would of itself be a waiver of the forfeiture and a good defence to that suit. (Goodright v. Davids, Cowp. Rep. 803. Fox v. Swan, Styles’ Rep. 483.) And it seems, by a recent decision of Mr. Justice Patterson, that the act of the landlord, in distraining for the rent which accrued previous to the forfeiture, is such an admission of an existing tenancy at the time of such distress, as to prevent a recovery in an ejectment suit upon a demise laid in the declaration previous to that time. (Doe ex dem. David v. Williams, 7 Car. & Payne’s Rep. 322. See also Penant’s case, 3 Coke’s Rep. 64, b. note B. Thomas & Frazer’s ed.) The landlord may indeed, after his re-entry, recover in an action of debt, or in an action upon the covenants in the lease, for the rent which accrued and became due before the demise laid in the declaration in the ejectment suit. He cannot, however, recover as landlord for any rent due after that time, but must he left to his reme
The injunction in this case ought never to have been granted. The order of the vice chancellor must therefore be reversed, and the injunction must be dissolved, with costs to be taxed,
Ordered accordingly.