Barnhart v. Painter

2 Rawle 78, 1829 Pa. LEXIS 134

• Court: Supreme Court of Pennsylvania
• Decided: July 3, 1829
• Status: Published

Opinion

Smith, J.,

(after stating the principal facts, the pleadings, and the charge of the court below,) delivered the opinion of the court as follows: — The instruction given to the jury was erroneous. On the issue-of no rent in arrear, the question to be tried was, whether Alexander Graham had a right to demand rent? To me it appears very evident, he had no such right. His claim was founded solely upon his writ of Liberari Facias to November Term, .1824. If this execution had not beenissued, Alexander Graham would not have had possession; and When, therefore; it was set aside, and'restitution awarded, he not- only lost all claim to the rent, subsequently accruing, but could have been compelled to restore to Lott Carson, if he had been living, or to his heirs, if.he were dead, the rent he had received. . His right was then, founded on the execution, and, therefore, when that was gone, his-claim to rent was gone also. This, too, seems to have been taken for granted, by the judge who tried the cause, for, in his charge, he says, “Under that lease John Painter was not' entitled to receive, rent.” But this was the very question then trying, for it was under this.lease, that Painter set up his claim to the rent; it is set out by him in his avowry at large, and it is on .this lease, the plaintiff replied, there was no rent in arrear. I am then decidedly of opinion, no rent was, due to Alexander Graham, when he authorized John Painter, by the endorsement on the lease, “ to receive and collect the balance of the said lease;” and, therefore, Painter could have no right to demand any under the said lease.

It is, however, alleged by the defendants’ counsel, that although no rent was due under this lease to Alexander Graham, yet, there was a parol lease from John Painter to George Barnhart, and that by virtue of this, he had a right to distrain.- There is something plausible in' this. But it-is unfortunate .for the defendants, that John Painter should set out in Lis avowry, and in his warrant, a lease so entirely different from the one under which he claimed rent. -If such a lease, really existed, of which, I confess, I am at a loss to discover the evidence,' it cannot help -the defendants. The issue was taken upon Graham’s lease; -which was a written lease, not a parol one. But if the defendants had eyen proved, that another lease between other parties did exist, and that the rent was due upon that other lease, and not on the lease mentioned in the avowry, the plaintiff’s case would have been made out, and the defendants acknowledged to be trespassers. They can be justified only by the lease set out by themselves, or not at all.

It is further urged on the part of the defendants, that John Painter being the administrator of Lott Corson, deceased, was clearly entitled to -the rent, and as administrator could distrain. This ground, I deem equally .untenable.- John Painter.does not claim by virtue of a lease from Lott. Corson, nor upon his own lease. . It must be recollected, that when Graham’s execution was set aside, and thereupon restitution awarded, if Corson had been living, he could have claimed -restitution, and he being dead, his heirs, not his administrator, have the same right. ' It is unnecessary, in this case, to determine, whether an administrator can enter upon real estate, and take- the profits; it is certain, he cannot bring an ejectment for the real estate of the. intestate, nor enter upon and disturb the heir, without an order of sale from the Orphans’ Court. See also Drinkwater v. Drinkwater, Administrator of Prince, 4 Mass. Rep. 356, where this matter is fully elucidated. Once for all, Painter had not entered .upon the property and given a lease; nor does he justify, under a lease from Lott Corson, or himself. And I, therefore, think, the,charge of the court was erroneous, in leaving it to the jury to find for the defendants, on a supposed right in John Painter, as administrator of Lott Corson, deceased, to distrain.for the rent in question.

Another error is assigned on this record. It is this, that “ the court erred in reinstating the appeal from the report of arbitrators, after the same had been stricken off;”-in other words, that the whole proceedings, since the award' of arbitrators,- are illegal. I have already stated, that this was an action of replevin, in which the plaintiff complained of the illegal acts of the defendants. He does not claim any thing from Lott Corson, or his estate; but, demands damages from John Painter and John C. Caul, for unjustly taking and detaining his property. Clearly, trover or trespass would lie. It is evident, the personal acts of the defendants, constitute-th®

. grounds of this action; and in case of recovery, damages are recovered for the detention. The proviso in the arbitration act, allowing executors or administrators to appeal, as theretofore, cannot, and in my opinion, does not apply to cases in which executors or administrators are sued for their own acts; but'merely applies where they sue, or are sued in their representative Capacity. To construe it otherwise, would be a perversion of the act, or the provision in it. In this action, there was an award of arbitrators for the plaintiff, on the 29th of July, 1826, against the defendants. The defendant, Caul, does not appeal. John Painter alleges, that he is administrator of Lott Corson, deceased, and, therefore, he can appeal without payment of costs, in an action, in which the estate Of Lott Cor-son is not sued, and in which damages, are demanded of him for his own personal wrong or misfeasance. To illustrate this, let me suppose Painter had entered a man’s stable, and taken his horse, and an action of trespass or replevin, brought against him; — ,can he, by alleging, that he committed the trespass with a view to benefit some estate, of which he was administrator, claim privileges, which are not allowed to those who commit a trespass for their own benefit? Suppose an action of trespass had been brought against Caul alone, could he claim an exemption from costs, because the administrator of Corson had employed him, and intended:to defend him? It cannot be. The appeal then, by Painter, without payment of costs-, was illegal. The plaintiff objected immediately, and if the court’ had rejected his motion, he could have taken advantage of it in this court. It is, therefore, clear on this ground, that the reinstating the appeal, (not indeed at the next term, but at the third term, after it had been stricken off,) and all subsequent proceedings were illegal, and must be reversed. It is not necessary to raise the question,, whether the court here have a right to reinstate an appeal, after it is struck off; or, whether it must be reinstated by the court of error. The plaintiff’s ground is, that the appeal was illegal, and was rightly struck off, and the error, was, in the court below reinstating it. Besides, the defendant did not avow as administrator of Lott Cor-son, but as assignee of Alexander Graham. He could, therefore, not appeal, as Lott Corson’s administrator, nor without payment of costs. The judgment is, therefore, to be reversed.

Judgment reversed.