Lyon v. Houk

9 Watts 193

• Court: Supreme Court of Pennsylvania
• Decided: May 15, 1840
• Status: Published

Opinion

The opinion of the Court was delivered by

Kennedy, J.

A. G-.Ege having contracted with George Houk, one of the original lessors, who had become sole owner of the reversionary interest by purchase from George Himes, his co-lessor, for the purchase of the reversionary interest in the leased premsses, the latter, as between themselves, was only entitled to the rent from the 15th of March 1837, to the 5th of the following month, making twenty days, which, at the rate of 500 dollars rent per annum, would have been equal to about .27 dollars 40 cents. The 15th of March was the commencement of the quarter, and the rent, according to the lease which Lyon had taken of Houk & Himes, was payable quarterly in advance. But then, by the agreement which Ege had made with Houk for the purchase of the reversionary interest in the leased premises, Ege was to have the residue of the quarter’s rent, so that 27 dollars 40 cents was all that Houk had any right to claim of Ege, considering the latter as the tenant in possession, as in fact he was; because, after his purchase of the reversion from Houk, he, on the 15th of March 1837, came into the actual possession of the leased premises undpr a purchase from Lyon, the lessee, of his right therein, made previously, on the third of the same' month. By this means he acquired all the interest of Lyon, the lessee, in the premises, as well as that of the lessors, to a limited extent. Having come thus rightfully into the actual possession, as tenant, at least, of the leased premises, and being in possession as such of the same, when the rent became payable, on the 15th of March, it was his duty to see to the payment of it, as he thereby made himself either liable to pay, or to be distrained on for it, if he did not. Having thus become a privy in interest, he was consequently a proper person to tender all the rent coming to Houk, as between the latter and himself. Co. Lit. 206 b, 207 a; 1 Sound. Rep. 203, note b; Williams v. Bosanquet, 1 B. & B. 461; Latch. 107; 7 Co. 13. In this respect he stood in the-shoes of Lyon, the original lessee; and moreover, as claiming an interest in the rent itself, by purchase from Houk. Then if he tendered, or caused a sufficient sum of money to be tendered, Houk ought either to have received it, or not to have distrained for it subsequently, without having made a personal demand of it, and a refusal on the part of Ege to pay. Gilbert on Rents 81, 82, 83; Hol. 207; 2 Rolle. 427. A distress is a summary remedy, given by law for the recovery of rent, and may be considered equivalent, in some respects, to an action in which a judgment is obtained, and an execution awarded-for the recovery of it. But it is very obvious, if an action were to be brought for the recovery of rent, after a tender of payment had been made of it to the landlord, without his having subsequently made a demand of the rent from the tenant, the tenant, by pleading the tender, and bringing the money into court, would defeat the plaintiff in his action, and recover from him the costs expended by the defendant on account of it. We therefore think that the court below erred in charging the jury that the tender made by Ege of the rent coming to Houk, did not take away or suspend the right of the latter to distrain for it, until he made a demand on Ege for it, and the latter refused or omitted to pay it.

Judgment reversed, and a venire de novo awarded.