Duff v. Wilson

The opinion of the court was delivered, October 16th 1871, by Sharswood, J. Philip Smethers, being the owner of .a tract of land in Clarion county, subject to a mortgage to Matilda Kifer, conveyed one undivided moiety thereof to Samuel Duff, clear of encumbrances. Duff then leased this moiety to Smethers for the term of hve years at a certain annual rent. The defendant below, Samuel Wilson, by a writing attached to or endorsed on the lease, became bound for the faithful performance of the covenants and agreements to be done and performed on the part of Smethers. This was an action by Duff against Wilson for rent accrued under the lease. The defendant below offered to show that the mortgage of Matilda Kifer had been sued out, the premises sold by the sheriff, and the tenant evicted by the purchaser at sheriff’s sale before the rent accrued. This was objected to and rejected by the court, and this ruling forms the only assignment of error. No doubt Smethers the tenant was bound by his covenants to pay off the Kifer mortgage, and it is therefore contended that inasmuch as this eviction was in consequence of his own default, he should not be allowed to take advantage of his own wrong in resisting on that account the payment of the rent; and if he could not, neither can Wilson his surety. There is great plausibility in this argument. But let us examine it a little more closely and see to what consequences it leads. It is not denied that, apart from his covenant to pay the mortgage, the eviction would have suspended the rent. When the title was divested from Duff and vested in the sheriff’s vendee, the relation between Duff and Smethers ceased, as much so as if Duff had himself assigned the reversion to a stranger. It is always competent for a tenant to set up that the title of his landlord has come to an end subsequent to the date of the lease. The purchaser at the sheriff’s sale might have affirmed the lease and required the rent to be paid to him as assignee of the reversion: Farmers’ and Mechanics’ Bank v. Ege, 9 Watts 436; Hemphill v. Tevis, 4 W. & S. 535. Had he done so, it can hardly be pretended that Smethers could have been compelled to pay the rent to Duff as well as the purchaser. In this case he elected to disaffirm the lease and took possession of the premises. Surely, Duff’s right of recovery cannot depend upon the election of the purchaser. This is a reduotio ad ahsurdwm. In every lease there is an implied covenant of quiet enjoyment. Whenever the enjoyment ceases by lawful title, rent, which is the recompense of enjoyment, also ceases. Duff had a right of action against Smethers for his violation of his covenant to keep him indemnified against the mortgage. In that action hé could recover such dam [319] ages as the law awards in such a case. If, however, he can still proceed and recover the rent accruing from time to time under the lease, as if it were still existing for the whole period which the lease may have to run, he will evidently obtain much more than such damage. Even if Smethers could plead payment of rent, subsequently to the eviction as a set-off against Duff’s claim on the covenant, and it is not easy to see on what principle he could do this, how does this matter stand as regards the surety Wilson ? He guarantied not Smethers’s performance of his covenant to pay the mortgage, but his covenant to pay rent. Why then should he be compelled to pay what according to this argument will go indirectly to pay for the breach of another and distinct covenant which he did not undertake to guaranty? In point of fact it would seem that Smethers had put Wilson into possession of the premises for his indemnity, and it was Wilson who lost the possession by the eviction. The two claims of Duff for rent under the lease and for damages under the covenant were separate and distinct, and must not be confounded, especially to the injury of a surety. To the action for rent under the lease, the divestiture of the title of the lessor under the sheriff’s sale and the consequent eviction of the tenant was a perfect legal defence. The right of the lessee to occupy and enjoy the premises under the lessor came to an end, and with it his liability to. pay for such enjoyment. He cannot be charged directly or indirectly for the breach of his covenant as to the mortgage, either in part or in whole, in an action on the lease, and á fortiori his surety for the rent, who was in no wise surety for the covenant, shall not. We think, therefore, that the learned judge below committed an error in rejecting the testimony offered by the defendant. Judgment reversed, and venfre facias de novo awarded.