Jackson ex dem. Livingstons v. Kipp

By the Court, Savage, C. J. The plaintiff cannot sustain this action for the non-payment of rent, neither at common law nor under the statute. He cannot recover at common law, because he has not complied with the common law requirements, such as the demand of the precise amount of rent on the day it fell due, at a convenient time before sundown. (7 T. R. 117. 1 Saund. 286, n. 16. Saund. on Pl. and Ev. 470.) Nor can this action be sustained under the statute, because there was abundant property on the premises countervailing the arrears of rent, and which might have been dis-trained. Nor can the plaintiff recover for a breach for the non-payment of the . fifth of the sale of the premises. The case is rather obscure as to the sheriff’s sale in April, 1826. It is not stated' that the defendant’s interest in the demise d premises was sold; and if there was no sale there could be no forfeiture on that ground. If there was a sale of the premises, then a question I apprehend would arise, whether such sale was collusive, or whether it was bonafide an adversary proceeding on the part of the creditor. If collusive, and made with intent to defeat the condition in the lease, then the plaintiff would be entitled to recover; but if bona fide, then, according to the opinion of Platt, justice, in Jackson v. Silvernail, (15 Johns. R. 279,) such sale does not work a forfeiture; and such was the point decided by this court in Jackson ex dem. Schuyler v. Corliss, (7 Johns. R. 531,) though an intimation to the contrary was thrown out by Mr. Justice Sutherland, in Jackson v. Groat, (7 Cowen, 286.) Upon the facts appearing in this case, the defendant is entitled to judgment.