Stayton v. Morris

4 Del. 224

• Court: Superior Court of Delaware
• Decided: July 5, 1845
• Status: Published

Opinion

Booth, Chief Justice,

charged the jury.—1. What are the rights which a purchaser at sheriff’s sale acquires ? Whatever title the .defendant has in the land passes to the purchaser. He is also entitled to rent from the day of sale. The act of assembly provides, (Dig. 213,) “ In any case of sale as aforesaid, the purchaser shall be entitled to rent for the premises sold, from the day of sale; if such premises be in possession of a tenant under rent, such rent shall be apportioned according to the time ; the proportion for the time the rent has been growing due to the day of sale, being payable to the lessor or his assigns, and the residue to the purchaser; and each party shall have remedy by distress or action for his just proportion; and a purchaser may recover his proportion' of rent, although such rent be reserved by deed (as well as rent from the day of sale, in case no rent has been reserved,) by an action of assumpsit for use and occupation.” Amos Stayton, therefore, as assignee of Charles, the purchaser at sheriff’s sale, became entitled to the land as fully as Constantine Morris held it, and if the land had been in the pos session of a tenant, the act of assembly would give him remedy for the rent by distress. Even as against this. defendant who was in possession as the widow of Constantine Morris, if she remained in possession, Mr. Stayton would be entitled to a reasonable rent, and could recover it in an action for use and occupation. But in regard to the remedy by distress, or the special remedy under the ninth section. of the act concerning landlords and tenants, by way of attachment, the relation of landlord and tenant must exist by a demise for a certain rent. If then it is not proved that there was such a demise in this case, by which. Mrs. Morris became the tenant of- Mr. Stayton, under an agreement to pay a certain rent, Mr. Stayton was not entitled to the remedy by attachment, and cannot succeed in this issue.

Cullen, for plaintiff. Layton, for defendant.

If the relation of landlord and tenant exists at a certain rent, the verdict will be for plaintiff for that sum; if the relation does not exist, the verdict will be for defendant; if it does exist but no certain rent agreed on, the jury had better find a special verdict.

The jury found a verdict for plaintiff for $22.

Motion was afterwards made “ in arrest of judgment and that the court enter judgment for defendant, non obstante veredicto,” .for these reasons: 1. That the verdict was ágainst the evidence. 2. That it was against the law. 3. That it was against the charge of the court. This motion was refused on the ground that there was no matter on the record on which the motion could act. A motion for a new trial was then made on the same grounds and refused.