Russell v. Fabyan

27 N.H. 529

• Court: Superior Court of New Hampshire
• Decided: December 15, 1853
• Status: Published

Opinion

Eastman, J.

It appears by the case that the defendant took of the plaintiff a lease of the premises for which rent is claimed, on the 28th day of January, 1847. The lease was to run for five years from the 20th of March, 1847, and the rent was to be paid annually, on the first day of September, in each year. It appears, also, that the defendant entered under the lease, and was in possession of the premises during the time for which payment was sought; this action being brought for the rent which fell due September 1,1850.

The defence to the action is, that after the entry by the defendant in March, 1847, he was evicted by one Dyer on the 14th of June, 1848, by a title to the premises paramount to that of the plaintiff, and that the eviction continued during the year for which rent is claimed in this suit.

The plaintiff’s title to the premises was by virtue of a deed from one Daniel Burnham to him, dated August 21, 1844; and the eviction set up was alleged to have been by Dyer, a creditor of Burnham, who had attached the premises prior to the conveyance by Burnham to the plaintiff. The conveyance was made August 21,1844, and the attachment in May, 1843; and, consequently, if the suit should terminate in judgment and execution, and a legal extent should be made upon the premises, a title paramount to that of the plaintiff would be gained.

This was done; judgment was obtained in the suit against Burnham in favor of Dyer, in May, 1848, and a set-off of the premises was duly made to Dyer on the 14th of June following. Dyer took possession of the premises by virtue of the extent, and evicted the defendant, as the case and the papers to which it refers show; and had this state of things continued to exist, and Dyer held by virtue of his extent, it would have been a good defence to this action; for an eviction from the demised premises, before the rent falls due, by a title paramount to that of the lessor, is a good defence to an action for rent; for the obligation to pay ceases when the consideration for it ceases, which was the enjoyment of the premises. 2 Roll. Abr. Tit. Rent, O ; 1 Saund. 205, n.; Bacon’s Abr. Rent, L.; Lansing v. Van Alstyne, 2 Wend. 565, n.; Fitchburg Cotton Man. Co. v. Melvin, 15 Mass. Rep. 268; Hunt v. Cope, Cowper, 242; Smith v. Shepard, 15 Pick. 147; Loomis v. Bedel, 11 N. H. Rep. 74; 2 Bing. 112; Sapsford v. Fletcher, 4 Term Rep. 511; 1 C. & P. 80; Sprague v. Baker, 17 Mass. Rep. 590; 3 Kent’s Com. 464; Morse v. Goddard, 13 Met. 177.

But the title thus acquired by Dyer was a defeasible one. By the 13th section of chapter 208 of the Compiled Statutes, it is enacted that “ such extent shall be void, if, within one year from the return day of the execution, the debtor, or any person interested, shall pay or tender to the creditor the sum at which such real estate was appraised, with interest from the time such levy was received for record by the register of deeds.”

Now the plaintiff contends that the right of redemption contemplated by this section of the statute was legally exercised by him, and that the title acquired by Dyer by his levy was thereby defeated.

It appears from the case and the papers to which reference is made, that on the 3d of November, 1849, prior to the expiration of the year contemplated by the statute, Russell made a legal tender to Dyer of his debt, costs and interest, according to the requisitions of the statute; and consequently, if he had the right to make the tender, the extent would become void.

The provision of the statute extends to the debtor, or to any person interested, and the plaintiff being the grantee of Burnham, and holding, in fact, all the title Burnham had, was clearly interested, and had a right to make the tender; and it would give him the entire title, unless the sale of Burnham’s right to redeem, on the 31st of July, 1848, should, under the facts stated, operate as a bar to the rights given by the statute.

At the same May term, 1848, at which the execution, by virtue of which the set-off was made, was recovered, Dyer recovered another execution against Burnham, on a suit commenced in 1846, and on that execution advertised and sold, on the 28th of July, 1848, Burnham’s right to redeem the premises set off on the first execution.

If this sale could deprive Bussell of the right to redeem by paying or tendering the debt, costs, &c., on the first execution, within the year, then, upon the principles laid down, the eviction continuing, it is quite evident that the plaintiff has no cause of action here. 1

But so far as appears from the case, Burnham had no right which could be sold on the second execution., The-suit upon which that execution was obtained was commenced in 1846, and the deed to Bussell was in 1844. All the right which Burnham had to the premises was conveyed to Bussell by this deed. There was, of course, at the time of the commencement of the suit, nothing of Burn-ham’s that could be attached ; and at the time of the sale, nothing of his that could be sold. , He had parted with his title and rights long before either. Bussell held the property, subject to the attachment in the first suit, and when that debt was paid he was the sole owner of the property ,* and Burnham, after the conveyance to Bussell, had no interest whatever in the property. Burnham had, therefore, no right to redeem which could be sold on the second execution. The right of redemption was in Bussell alone, and his right could not be sold on an execution against Burnham in a suit commenced after Russell had gained his title.

The right of redemption being in Russell, the tender by him made void the extent, and that being made void, all rights acquired under it would, consequently, be void. The tender gave to Russell a perfect title to the property, so far as the facts disclosed in this case show. It restored to him all his rights, and gave to him a cause of action for the rent. The lease has not, in any way, been avoided or cancelled, and Russell’s rights under it were only temporarily suspended. It remains as effectual as though nothing had been done by Dyer or Fabyan.

But, it is contended in argument, that Russell had no right to make the tender, inasmuch as the right of redemption had passed to Dyer, by the sale on his execution; that the conveyance by Burnham to Russell was fraudulent, and, therefore, could not be set up against Dyer, who was a creditor of Burnham before the conveyance.

The case finds that the defendant proposed to show that the deed from Burnham to the plaintiff was fraudulent, as to creditors, and, therefore, void, because Dyer was a creditor. It does not state that this proposition was made with-a view to show that Russell had no right to redeem ; that he had no title which he could use; but we take it that such was the object of the introduction of the evidence.

It is well settled that a tenant cannot dispute the title of his landlord. If he has recognized the title by accepting a. lease, by payment of rent or the like, he will be estopped during the term from disputing it, although the want of title' may appear from the plaintiff’s own evidence. Gray v. Johnson & a. 14 N. H. Rep. 414; Jackson v. Rowland, 6 Wendell 670; Heath v. Williams, 25 Maine Rep. 209; Banwick v. Thompson, 7 Term 488; Dolby v. Iles, 11 Ad. & E. 335; Carpenter v. Thompson, 3 N. H. Rep. 204; Palmer v. Elkins, 2 Ld Raymond 1550; Lewis v. Willis, 1 Wilson 314. It is only by an eviction by the landlord himself, or by a title paramount to that of the landlord, that the tenant can avoid his express contract to pay the rent.

Again, an outstanding title, which is paramount to that of his landlord, is no defence, by a tenant, to an action for rent. There must be an ouster or disturbance by means of it, amounting to an eviction. Loomis v. Bedel, 11 N. H. Rep. 74. There is, moreover, high authority for holding that the disturbance of the possession must be by due process of law. Lansing v. Van Alstyne, 2 Wend. 565, note; Waldron v. Mc Carty, 3 Johns. 464; Kerr v. Shaw, 13 Johns. 238.

Now, the tenant, in this case, was evicted by Dyer, on the 14th of June, 1848, by means of the set off then made, and seizin and possession under it. That was the time of the eviction, and that was the title by which it was done. The sale of the right of redemption did not take place till the 31st of July following, and there was no attempt to hold the premises by virtue of any title then acquired. There was no eviction, or pretence of any, under that title, and the defendant, in his pleadings, makes no suggestion of any eviction, except. on the 14th of June. What, then, does the tenant propose to show ? It is this: that his landlord had no title, at the time of this sale, on the 31st of July, which could be used against the title then acquired. In other words, he proposes to show that his landlord’s title is fraudulent, for the purpose of sustaining the title of Dyer, acquired by the sale of the right of redemption, by which title he was not evicted. This cannot be done. It comes clearly within the condemnation of the principles which we have stated. It is showing, not that the title by which he was evicted, wTas paramount to his landlord’s, but another by which he was not evicted, and which was acquired subsequent to the eviction. The tenant asks to show his landlord’s title void, for the- purpose of sustaining an outstanding title, or, what is the same thing, he asks to defeat his landlord’s title, acquired by his deed and by the tender to Dyer, by showing that he had no title whatever. He proposes to dispute his landlord’s title in toto, as it stood at the time of the demise, and ever after.

But, to take the strongest view of the matter for the defendant, and to consider the proposition to be to show the plaintiff’s title fraudulent and void, and incompetent to be used to redeem the property and defeat Dyer’s title, as acquired by the set-off, without regard to that acquired by the sale of the right to redeem.

This proposition may, perhaps, appear plausible, but an examination of it cannot fail to show that, if entertained, its effect is to allow the tenant to prove that his landlord not only had no title at the time of the execution of the lease, but has had none since. The plaintiff’s title, which, he held at the date of the lease, was acquired in 1844, and the derñise was not till January, 1847; and the defendant asks to show that this title was void; and if this is permitted, then he can say that the plaintiff never had any title, for it is upon his deed of 1844, that the plaintiff founds all his interest in the property. But can the tenant thus dispute the title of his landlord ? Can he thus say that his landlord had not, at the time of the lease, any title whatever ? Does it lie in his power, after having entered upon the demised premises, by virtue of the lease, to repudiate that lease, and to assert and show that the title of his landlord was fraudulent and void, and thereby screen himself from the payment of rent to the plaintiff? ¥e think it cannot so be; that such is not the doctrine of the books; and that to admit this evidence would be in contravention to the well established principles governing the law of landlord and tenant. In the language of the counsel, the tenant cannot dispute the title so long as it remains as it was at the commencement of the lease. This is not the proper action in which to test the validity of the conveyance from Burnham to Russell, and the defendant is not the proper person, standing in the relation in which he does to the plaintiff, to contest the point. To go into the matter, as proposed in this suit, would be to try an issue indirectly between these parties, which should be investigated directly between Dyer and Russell themselves.

After the tender by Russell, all the title was prima facie in him; not only as to the defendant, but as to all others; and Fabyan had then the right to assert his claim and possession under the lease. If he should be kept out of the possession by Dyer, after the tender, he would have his action against Dyer therefor; and if he should not succeed in that, by reason of a failure in his landlord’s title, he would have his remedy against the plaintiff upon his covenant in the lease for quiet enjoyment.

Let Russell and Dyer or Burnham and Dyer settle directly the right to the property, by action brought for that purpose, and in case of an eviction by Dyer, upon a title thus gained by him, the defendant might show it without infringing upon the fundamental and important principles governing the law appertaining to landlord and tenant. But he cannot show it in the manner, proposed here, and thereby directly controvert the title of his landlord. There is no suggestion that the rent claimed in this suit has ever been paid to Dyer. There is no plea to that effect, and the defence does not rest on that ground. Probably the defendant has chosen to withhold payment from all, till it should be legally settled to whom he should pay; and as Dyer has received the payment of his debt from Russell, (for the papers show that the money was left in his house,) or might have received it, there would seem to be no very strong reason why the defendant should not pay the rent to the plaintiff until Dyer shall see fit to test his title by direct action with Russell.

"We need make no suggestion in regard to the letter of the defendant to the plaintiff, in 1851; but it Avas clearly competent evidence of the existence of the relation of landlord and tenant at that time.

According to the provisions of the case, there must be

Judgment for the plaintiff.