55 A.2d 552 | Pa. Super. Ct. | 1947
Argued October 10, 1947. Plaintiff entered a judgment in ejectment against defendants under the authority contained in a written lease. The court below refused to open or strike off the judgment, and defendants have appealed.
Appellants' first contention is ruled by the recent decision of this Court in Harper et ux. v. Quinlan,
The second contention of appellants is without merit. The acceptance by the lessor of rent from the lessee, accompanied by language clearly indicating the lessor's intention to insist upon obtaining possession of the premises, does not constitute a waiver of the right to pursue the lessor's possessory remedies.Pennsylvania Company, etc., v. Shanahan,
Appellants challenge the right of an assignee of a lease to avail himself of a warrant of attorney to confess judgment contained therein, and also question the sufficiency of the present record to establish appellee's interest in the lease.
Generally, the assignee of a lease may properly exercise the warrant of attorney to confess judgment contained in the lease. This right has been sustained where there was an assignment by operation of law, as when a corporate lessor subsequently merges with another corporation, and the new corporation seeks to enforce the rights of its predecessors. Pittsburgh Terminal CoalCorp. v. Potts,
We recognize that authority to confess judgment cannot operate in favor of a stranger to the contract, and that, if the interest of the plaintiff is not clearly set forth in the averment of default, the judgment may be stricken off. Boggs v. Levin,
In the present case we are of the opinion that the interest of appellee has been sufficiently pleaded. Appellee sought to recover possession of the demised premises at the end of the term. The lease provided that an amicable action of ejectment might be brought by the lessor for the recovery of the demised premises if the lessee failed to vacate at the end of any term. The averment of default, after reference to the premises by street and number, set forth that "on the 23rd day of March, 1946, your affiant purchased said premises from Frederick Hotz and Eva Hotz, his wife." The lease, incorporated by reference, bears a formal assignment thereof to appellee, dated March 23, 1946. The assignment was signed by Penn M. Mooney, Agent, the original lessor, and included "all benefit and advantages to be derived therefrom." The lease also set forth that the lessor and the lessee covenanted "for themselves, their respective heirs and successors or assigns."
In addition to these facts, it appears from the pleadings filed that, subsequent to March 23, 1946, appellants paid rent to appellee, thus in effect recognizing him as the owner of the demised premises and attorning to him.
There is no more merit in appellants' complaint that the court below abused its discretion in refusing petition for reargument than there is in the other contentions which appellants have presented.
Appeals are dismissed, at the cost of appellants.