Howard v. Ramsay

7 H. & J. 113

Opinion

Earle, J.

at this term, delivered the opinion of the court. This appeal presents the case of a replevin founded on a distress for rent. The plaintiff, Robert Ramsay, declared for taking his goods and chattels on the 20th' of February 1822, in his house, situate on the Baltimore and York Turnpike Road in Baltimore county. Mary W. Howard, the defendant, avowed the taking the goods and chattels in the declaration mentioned, in the dwelling-house of the plaintiff, because one John Ilgenfritz for a long time, to wit, for the space of two years ending on the 22d of August 1821, and from thence until, &c. held and enjoyed the said dwelling-house, as a subtenant thereof to one William M'Mechen, the said William, being the assignee of one Samuel Reynolds, of a lease or demise before then assigned to the said Samuel by one Nicholas Reynolds, the lessee named in a demise or lease made to the said Nicholas, as lessee, by her the said Mary W. Howard, and James G. Howard, her then husband, on the 22d of August 1801, under a certain rent of $100, payable on the 22d of August in each and every year, for the term of 99 years from thence next ensuing, over and above all taxes and assessments whatever. And because $200 of the rent aforesaid, for the space of two years ending, on the 22d of August 1821, was due and in arrear, by virtue and under the said demise by her, and her husband James G-. Howard, who seized of the premises only in right of his wife, died on the 25th of November 1819, she avowed the taking the said goods and chattels, in the said dwelling-house, as and for and in the name of a distress for the said rent, so due and in arrear to her the said Mary W. Howard. The plaintiff pleaded three distinct pleas to this avowry. They are as follow: “And the said plaintiff, as to the said avowry of the said Mary saith, that the said Mary, by reason of any thing by her in that behalf alleged, ought not to avow the taking of the said goods and chattels in the said place in which, &c. and justly, &c. because he says, that the said Mary did not demise the said premises in which, &e. in manner and form as the said Mary hath above in said avowry alleged; and this the said Robert prays may be inquired of by the country. And for further plea in this behalf, by leave of the court here first had and obtained, according to the form of the statute in such case made and provided, the said Robert comes and says, that the said Mary, by any thing.in the said avowry alleged, ought not to avow the taking of the said goods and chattels in the said place in which, &c. and justly, &c. because he says, that said Ilgenfritz did not hold and .enjoy the said premises in which, &c. with the appurtenances, as tenant thereof to the said Mary, under the said supposed demise thereof in the said avowry mentioned, in manner and form as the said Mary hath above in her said avowry in that behalf alleged; and this he, the said Robert, prays may be inquired of by the country, &m And for further plea in this behalf, by leave of the court here first had and obtained, according to the form of the statute m such case made and provided, the said Robert says, that the said Mary, by any thing in her said avowry contained, ought not to avow the taking of the said goods and chattels, in the said place in which, &c. to be just, because he says, that no part of the said supposed rent, in the said avowry mentioned, ■ivas or is in arrear from the said Ilgenfritz to the said Mary, in manner and form as the said Mary hath in her said avowry in that-behalf alleged; and this he, the said Robert, prays may be inquired of by the country, &c.”

To the two first of these pleas, the defendant demurred specially, and assigned for cause of demurrer, that the conclusion of the said pleas is to the country, and ought to have concluded with a verification, and that they are both otherwise informal, &c. And to the third plea to the avowry the defendant joined issue with the plaintiff.

The court below overruled the demurrers, and immediately charged the attending jury to inquire into the damages sustained by the plaintiff, Robert Ramsay, by reason of the unlawful taking and unjust detention of the goods and chattels in the declaration mentioned, who in an inquisition returned assessed the same to one cent damages, and costs, &c. On this finding the court gave final judgment, and refused to direct the jury to be sworn to try the issue in fact upon the third plea, upon the ground that the judgment rendered on the demurrers to the first and second picas, was a bar in law to the defendant’s further progress in the suit.

Having made this full statement of the case, in which more than usual particularity has been observed, because it involves the subject of pleading, we proceed to an examination of the questions of law arising out of it. The special causes of demurrer to the two first pleas have been abandoned, and the appellant must therefore be considered as contending, that those pleas are substantially defective. It is the opinion of this court, that the first plea to the avowry is bad in substance, andlhat Baltimore county court ought not to have overruled the demurrer to that plea. The avowry states a demise on the 22d of August 1801, to Nicholas Reynolds, for 99 years, by the husband and the wife. It also states the death of the husband on the 25th of November 1819, and the consequent survivorship of the wife, and the accruing of the rent distrained for, after the death of the husband, and during the sub-tenancy of Hgenfritz. The plea in bar ot this part of the avowry, traverses a demise by the wife only, in manner and form as therein alleged; and the ready answer is, that no such demise by the wife is alleged in the avowry. The allegation of the avowry points to a demise by James G. Howard, and Mary W. Howard his wife; the plea responds a demise by Mary W. Howard only. The one sets forth a joint demise; the other insists on a separate demise. And the real question is, does thisdistinctionbctweenthe demises mark the defective character of the plea? We ai e fully impressed with the opinion that it does; and we test it by remarking, that the isssue tendered by this plea is an immaterial issue, and such as would not have been cured by a verdict. Itis notacase where a material allegation is traversed inartificially, for then the issue taken upon it would have been informal, and aided after verdict. But it is a case where a material allegation is overlooked by the plea, and a point is traversed, that will not determine the merits of the cause; and, ex consequent^ the issue tendered is anámmaterial one. And that the issue tendered here is an immaterial issue, is a position that seems to us to be well supported by the casp of Carpenter vs. Stair, reported in 1 Roll. Rep. 86, referred to by 3 Saund. 319, (note 6.) It was an action of trespass, where the defendant pleaded in bar an award between the plaintiff and J S and the defendant, and several others, that the defendant should pay to the plaintiff and J S, a certain sum. in satisfaction of the trespass, and which he had paid to the plaintiff. The plaintiff replied there was ho such award between the plaintiff and defendant, as the defendant alleged; and on issue joined, and verdict for plaintiff, it was held, he should not have judgment, because he did not traverse the same award set out in the defendant’s plea, but put in issue an award which was not alleged in the plea. The position is further illustrated by the case of Sandback vs. Turvey, Cro. Jac. 585. To debt on bond the defendant pleaded payment of a less sum than the sum mentioned in the condition of the bond; the plaintiff replied, that he did not pay the sum mentioned in the condition of the bond; and verdict, that the defendant did not pay the said sum of the bond; this, says the case, is an immaterial issue, not aided by the verdict, for the plaintiff has not traversed the same payment that is in the defendant’s plea.

As to the subject of the second plea, the avowry states, that Jfgenfritz for a long time, to wit, for the space of two years ending on the 22d of August 1821, and from thence until, &c. held and enjoyed the said dwelling-house, as a sub-tenant thereof to one William Mechen-, and the negative allegation of the plea is, that Ilgenfritz did not hold and enjoy the said premises, &c. as tenant thereof to the said Mary, unde? the said supposed demise thereof in the said avowry mentioned, in manner and form as the said' Mary hath above in her said avowry, in that behalf alleged. The counsel for the appellant has urged, that the demurrer to this second plea involves a consideration of the point above decided on the first plea; and-that as to the second plea it ought to receive a like decision, and the judgment on this demurrer ought to be reversed. On the most mature reflection we cannot, in this respect, agree, in opinion with the counsel. The demise referred to in the second plea, is the demise by the husband and the wife; for its language is, “under the said supposed demise thereof in the said avowry mentioned. ” The rent distrained for is said to have accrued under this demise, after the death of the husband; and to sustain the avowry for it, the wife must establish such a relation between her and the party distrained upon, as may in law constitute him in some degree her tenant. Ramsay in this business is a mere stranger, whose goods and chattels have been found upon the premises, and Rgenfritz is the person who is indirectly asserted to be the tenant whose goods and chattels are liable to the distress. He is called in the avowry sub-tenant to William M'Mechen, the assignee of the, lease for 99 years; and if wo could for a moment suppose it is thereby meant, that he i's in no degree, and for no purpose, the tenant of the avowant, we should incline to think that the avowry is in itself faulty. On the contrary, if the appellation is used to signify the relationship of landlord and tenant between the avowant and Ilgenfritz, which is presumed to have. been its object, it is not inappropriately declared in the plea that Ilgenfritz did not hold and enjoy the said premises as tenant thereof to the said Mary. And for using this language, the plea is not to be determined to be bad in substance. It is the denial only of a tenancy, which the avowant contends, for, and without establishing which, according to the view we have taken of the subject, she cannot support her avowry. A traverse of the sub-tenancy would have amounted to the same, thing.

A perfect privity between plaintiff and defendant is not to be dispensed with in an action of covenant for rent arrear; and. for the want of it the decisions have been, that covenant could not be sustained against an under lessee. Holdford vs. Hatch, Doug. 183. The same degree of privity, it would seem, is not necessary to render a person’s goods liable to a distress for rent as a tenant, A distress is rather a remedy upon the land, than on the person of a tenant, although some tenancy must be shown to sustain it. In Bradby on Distresses, 112, it is said, that for the purpose of distraining, a tenancy in effect should subsist, without reference to the manner m which it is created;, the only question being, whether the relation between the parties does really constitute a tenancy. And in his next page he states, that the occupation of the under-tenant to the lessee,, must indeed, in general, be considered with respect to the lessor, as the possession of his lessee, and therefore, that the goods of such under-tenant are liable to be distrained during the continuance of the original lease. And that such under-tenant is .treated as the tenant of the original lessor for the' purposes of a distress, may be seen by a case decided by Lord Ellenborough in the year 1805. It is the case of Forty vs. Imber, 6 East, 435, 436. Upon the whole, we concur with the court below in their opinion in relation to the demurrer to the second plea, and think they were right in overruling it.

There yet remains a question, connected with this case, to be examined by us. The court below refused to direct the jury to try the issue in fact joined by the parties on the third plea. It is contended there is ei’ror in this opinion and refusal of the court, and that the jury ought to have been impannelled to try the issue in fact. This depends on the correctness and effect of the judgment pronounced on the demurrers. Where the issues in law, determined against the plaintiff, go to the whole cause of action, they are conclusive, and there can be no occasion to try the issue in fact. 2 Tidd’s Pract. 685. The demurrer to the first plea here was incorrectly decided, as we have said above; but the court were right in their opinion on the demurrer to the second plea; and the only point is, whether the issue in law joined in that demurrer goes to the whole cause of action or avowry on this case; and we think it clearly does. The fact admitted by the demurrer is, that Ilgenfritz - was not the tenant to the avowant, as in her avowry alleged; and this admission leaves to the avowant the naked case of a landlord distraining for rent, without anj- specified tenant dis-trained upon, Ilgenfritz is confessed not to have held and enjoyed the premises as tenant to Mary W. Howard, and Ramsay’s goods found thereon, cannot be taken to satisfy the rent of a man, whose own goods could not be distrained to pay it.

JUDGMENT affirmed.