Prescott v. De Forest

Platt, J. delivered the opinion of the Court. The lease from Satterlee to the plaintiff, for a part of the house, for the whole term, must be deemed an assignment, and not [160] an underletting. There was no privity of estate between the plaintiff and Satterlee, but a privity of contract merely. The plaintiff did not hold as tenant to Satterlee, but as tenant *° Stewart, the original lessor and reversioner. The right of distress is incident to, and inseparable from the reversion 5 under such an assignment of the whole term, Stewart had a right to distrain on the assignee, and a double right of distress cannot exist in Satterlee, and in Stewart, unless there was an express agreement for that purpose between the assignee and Satterlee. Stewart, by reason of the privity of contract and estate, may sue the plaintiff, or distrain her goods, for the rent due to him ; but, Satterlee having a privity of contract only, without privity of estate, and without express power to distrain, can only sue upon the contract. ( Woodfall L. & T. 285. 286. 196. 2 Wils. 375. 1 Term Rep. 441.) There is no difference, in this respect, between an assignment of the whole of the demised premises, or a lease or assignment of the whole term, in a part of the premises. Nor can the second lease to Satterlee, for the year ensuing, that is, from the 1st of May, 1818, to the 1st of May, 1819, make any difference in the case. That was a lease to commence in futuro, and cannot operate as an assignment of the reversion, which still remained in Stezoart. By granting, on the 1st of February, the new lease to commence on the 1st of May following, Stewart did not transfer, or lose his right of distraining for the rent, under the old lease. And whether the new lease for the ensuing year, was granted to Satterlee or a stranger, could make no difference in the rights of the parties, in relation to the first lease. The plaintiff’s declaration, that Satterlee had a right to distrain, must be ascribed to her ignorance of her legal rights, and cannot vary the rule of law. The evidence of custom in New-York, was futile, and ought not to have been received. The witnesses, on that point, failed to prove any custom in regarcj to distress for rent in such cases ; but if they had proved it, we cannot allow any custom in this state, to control the general rules of the common law. Where a custom is of such antiquity, that we cannot trace its origin, it is co-eval with the common law itself; and then it [161] forms an exception to the general rule; because, there is ground to presume that they are of equal authority, and that the same power which established the rule, also made the exception. If Satterlee. had no right to distrain and sell the goods, it necessarily follows, that the defendant, though a bona fide purchaser for valuable consideration, acquired no title. It was an unauthorized sale, and transferred no right. I am, therefore, of opinion, that the judgment ought to be reversed. Judgment reversed. »