Blake v. Grammer

3 F. Cas. 593, 4 D.C. 13, 4 Cranch 13

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: May 15, 1830
• Status: Published

Opinion

Cranch, C. J.

In ejectment the defendant may show that the-plaintiff’s title has expired, because the plaintiff, can only recover by the strength of his own title ; and, by bringing the action, has admitted that the possession of the defendant is adverse. ,

In replevin the plaintiff can show that the defendants title has expired, because he must have a reversionary interest to entitle him to distrain.

But in an action for use and occupation the tenant cannot deny the title of his landlord. He has had the use and enjoyment of the property, and cannot deny the validity of the title- under which he has had that enjoyment. His possession is the possession of his landlord, and if a stranger brings ejectment, his landlord is to defend the suit, and will be answerable for mesne profits if the stranger should recover.

In the present case Mr. Grammer has enjoyed the use of the property under the possession given him by Mrs. Blake. That possession has not been changed or disturbed. He has continued to hold from year to year, and his term, as I understand it, has not expired.

It is true that he covenanted to clear and relinquish the property if, at any time, Mrs. Blake should sell or dispose of the lot, or in case she should wish to build ; and that upon his so clearing and-relinquishing the'lot, the. covenant should terminate. But this seems to me to be a covenant for the benefit of Mrs. Blake ; and if she does not require him to clear and relinquish the lot, and he still keeps possession, it is not for him to say that the covenant is terminated. The bank might have brought ejectment against Mrs. Blake, and afterwards recovered from her the mesne profits, for which Mr. Grammer would be liable to her, to the extent of the rent reserved. If he refused to attorn to the bank, or if the bank never demanded of him either the rent or the possession, he continued to hold under her.

I am therefore of opinion that she is entitled to recover for the five years’ use and occupation for which she has-sued. But if not entitled to the whole five years’ rent, she is certainly entitled to recover for rent .due before the sale which appears to be at least six months ; perhaps a year, if he was entitled to six months notice to quit.

But the CouRT was of opinion that the covenant had terminated with the sale, and that as the contract was under seal, this must be-considered as an action of covenant.

CRANCH, C. J. The covenant was not terminated until Mr. Grammer “ cleared and relinquished what he had inclosed.’.’ For Mrs. Blake was liable for the mesne profits until the bank should get possession, (which, it does not appear that they have yet obtained,) and therefore has a right to look to Mr. Grammer upon his covenant and occupation.

Judgment affirmed with costs.