Smith v. Crosland

Mr. Justice Green delivered the opinion of the court, The title of the landlord in this case was the very title which was held by John M. Crosland. During the time of his tenure, as was alleged and offered to be proved by the defendant, judgments were obtained against him upon which executions were issued and levied on this leasehold. The rejected offer of proof was to show that George W. Crosland’s title was acquired by deed from John M. Crosland, delivered on July 8,1882, that it was subject to the liens of two executions issued on June 12, 1882, and levied on the demised property on June 17, following, that these liens were preserved and the premises sold under them on September 23, 1882, to the Equitable Saving Fund and Building Association, who now claim the rent sued for. Upon these facts it is clear that the landlord’s title was divested by the sheriff’s sale, because that title was subject at the time he acquired it to the liens of the execution under which it was sold. It may be that the process was not issued against George W. Crosland, the defendant’s landlord, in his own name, but that is not material, since the sale would operate to divest his title with the same effect, whether he or his immediate grantor were the defendant in the execution. The leasehold, according to the offer, was subject to the lien of the executions when it came to the plaintiff. It seems to us this consideration places the case on the same footing as if the process had been issued against the plaintiff upon judgments obtained against him. His title was divested just as effectually as if he had been defendant in the execution. This being so, the case is brought within the line of decisions which hold that the tenant in a proceeding by his landlord to recover possession, may show in defence,-that the title of the plaintiff has come to an end by expiration, by his own act, or been divested by act of the law: Newell v. Gibbs, 1 W. & S., 496; Menough’s Appeal, 5 W. & S., 432; Elliott v. Smith, 11 Harris, 131; Heritage v. Wilfong, 8 P. F. S., 137; Koontz v. Hammond, 12 P. F. S., 177. in Newell v. Gibbs, supra, Rogers, J., said on p,. 498 — “ For although the defendant is not permitted to show that his lessor never had title to the demised premises, he may, on admitting that he once had title, prove that bis interest had expired.” In Menough’s Appeal the land [417] lord’s title during the term of the lease was purchased at sheriff’s sale under a judgment obtained prior to the commencement of the term. The rent for the year fell due at the end of the term, and was claimed by one to whom the landlord had assigned it, by the purchaser of the landlord’s title and by an execution creditor of the tenant. The rent was awarded to the purchaser of the landlord’s title on the express ground that the judgment under which the land was sold, was paramount to the lease, and it was at the purchaser’s option to disaffirm the lease or to affirm it and to recover the rent, and that as the rent ran with the land it could not be assigned by the landlord after the judgment so as to defeat the right of the purchaser to have it. In Elliott v. Smith we said, “A tenant cannot dispute the title of his landlord, nor can he purchase an outstanding title and under it withhold the possession from his landlord. When, however, he becomes the owner of the very title under which his landlord claims, either by purchase from the landlord or at a sheriff’s sale upon a judgment which encumbers it, he is not bound to give to another that which rightly belongs to himself.” Of course if a sheriff’s sale of tile landlord’s title, under a judgment which encumbered it, would vest it in the tenant when he was the purchaser, it would vest it for the same reason in a stranger should he become the purchaser. In Heritage v. Wilfong, Sharswood, J., said, “ This undoubtedly makes it the duty of the justice to hear any lawful defence which the tenant may offer. It would be such a defence if he could show that the title of his landlord had come to an end since the commencement of the lease. It would therefore be competent for him to plead and prove, that under a judgment against the lessor his estate had been sold by the sheriff, and that he had attorned to the purchaser.” It is true that in the foregoing case the judgment was against the tenant’s immediate landlord. But we can see no difference in substance between the determination of the landlord's title by a sale under a judgment against him personally, and such determination in a case where the sale was made under a judgment which was a lien upon the landlord’s title at the time of its inception. The legal result is the same in both cases, the title, the very title of the immediate landlord is diyested in each instance, and it is this divestiture which a tenant may set up against his landlord. The same doctrine urns repeated by the same eminent judge in Koontz v. Hammond, where he said, speaking of the right of defence by the tenant, “ He might have shown that the title of the plaintiff [418] had come to an end by expiration, by her own act, or been divested by act of law. For these reasons we think that the defendants’ offers of testimony should have been received, in so far as they related to the divestiture of the plaintiff’s title by judicial sale, and because of their rejection the case must be' reversed. The first and second assignments are sustained. Judgment reversed, and venire de novo awarded.