48 Conn. 397 | Conn. | 1880
This is a writ of error to reverse the judgment of a justice of the peace in a summary process proceeding, brought to the Court of Common Pleas, and by that court reserved for our advice.
The facts seem to be as follows:—Prior to April 3d, 1880, Turner, the plaintiff in error, was in possession of the premises. The property was subject to mortgages which were overdue, and he held under Woodruff, the mortgagor. On that day Turner agreed with Davis, the mortgagee, to hold under and to pay rent to him. Pursuant to that agreement they executed a written lease for one year from April 1st. That lease stipulated for monthly payment of rent, and that non-payment for ten days after due worked a forfeiture of the lease, and entitled the lessor to eject , the lessee by a summary process. That proceeding was instituted for the non-payment of rent due on the 1st day of June. It seems that Davis held more than one mortgage, and that one of his mortgages was executed April 2d, 1880. The premises being thus subject to the lease that mortgage operated as an assignment of the reversion to Davis, and he was thereafter entitled to the rents. The case however was not brought on that lease. But it was competent for the parties to execute the lease of May-26th, and that lease is the foundation of the suit. If there was nothing else in the case it would be quite clear that Turner would have been the tenant of Davis under the last lease.
As we have before intimated, had it not been for that judgment the legal possession would have been in Davis unquestionably. How is the possession affected by the judgment? Had the attornment been after the judgment the case would have been within and be governed by the case of Lockwood v. Tracy, 46 Conn., 447. In that event there would have been no inconsistency between the allegation in the complaint, conclusively established by the judgment, that Woodruff was in the possession, and the theory on which the present proceeding rests, that Turner was the tenant of Davis. As it is there is an irreconcilable inconsistency between Davis’s position then and now. Then he averred 'and proved (and thereupon had a judgment,) that Woodruff was in the possession; now, in another forum for the same purpose, (the actual possession of the property,) and practically against the same party, he alleges that his own tenant is in possession, (which in law is his own possession,) and upon that averment has obtained a judgment. Can both judgments stand? We think not. The former judgment was applied for and rendered after the attornment. The later act being inconsistent with the former, and being a more deliberate and solemn proceeding, should be regarded
Having obtained judicial action in his favor from one position, he could not resume the other and invoke the aid of the courts from that. The law will not permit him thus to play fast and loose. One position or the other must be a false one. Either might have been a true one in the first instance, but both could not stand together. Choosing the one he of necessity abandoned the other.
It is true the law often gives different remedies, all of which may be pursued at the same time. But they all l’est substantially upon the same facts, and the remedies are not inconsistent. Where the facts upon which the different remedies depend are antagonistic—the facts alleged for the purposes of one remedy directly contradicting the facts necessary to be alleged for the purposes of the other—the party is not entitled to both, although he may have an election.
Again—after the judgment against Woodruff he executed a lease to Turner, presumably regarding the judgment as definitely fixing the rights of the parties, and thereby established the relation of landlord and tenant. Davis then controverting the facts alleged and found true in the case against Woodruff, alleges a contrary state of things in an action against Turner, which directly affects Woodruff’s interest. It is certain that Woodruff could not conti’overt the facts established by the first judgment. With greater reason if possible Davis can not be permitted -to dispute them. If Turner is in privity with Woodruff, as we think he is, the judgment must be conclusive against Davis in the present action.
We think therefore that the justice erred in holding that
The Court of Common Pleas is advised to reverse the judgment.
In this opinion the other judges concurred.