Seltzer v. Robbins

Opinion by Mr. Justice Dean, On October 1, 1884, Issacher Robbins let to Robert M. Neal certain lots in the borough of Shenandoah, by written agreement, for a term of five years, at an annual rental of $150, payable monthly in advance. Neal took possession and put up a roller skating rink which he occupied for three months. There was a stipulation in the lease, accompanied by warrant of attorney to confess judgment in ejectment, that if the lessee made default in any payment of monthly rent for a period of thirty days, the lessor should have the right to confess judgment against lessee, and resume possession of the premises under habere facias pos [456] sessionem. Default in payment of rent being alleged by Robbins, on January 12,1885, he instituted in the common pleas an amicable action of ejectment, confessed judgment against Neal, and the sheriff redelivered to him possession of the premises, on which were a lot of roller skates owned by Neal. Prior to the judgment in ejectment, on December 8, 1884, David Williams filed a mechanic’s lien for labor and material furnished in and about the erection of the building. On this lien he obtained judgment February 16, 1885, after the landlord had resumed possession for nonpayment of rent; on this judgment execution was issued, and the assumed leasehold interest of Neal levied on and sold by the sheriff to W. D. Seltzer, this appellee, the sheriff executing to the purchaser a deed. On this deed Seltzer brought ejectment against Robbins and others, doing business as the National Polo Club. At the trial, the value of the building at the end of the five years term was claimed; also the profits which might have been made during the term; also the value of the roller skates. It will be noticed, each proposition is based on the assumption that Neal’s leasehold interest remained the same as when he took possession under his contract with Robbins. The defendant contended the property was not the subject of a mechanic’s lien; and further, that Robbins having resumed possession, because of the tenant’s default, before the sheriff’s sale on the lien, the purchaser took nothing which would support an ejectment or a recovery .of mesne profits. The court ruled in plaintiff’s favor on all three propositions, and there was a verdict against defendants for $3,303.10. From judgment entered on this verdict Robbins brings this appeal, preferring many assignments of error, but in the view we take of the law, it is only necessary to notice the fifth, complaining of the refusal of the court to admit in evidence the record of the original judgment. The written contract was put in evidence by plaintiff; defendant, in answer, offered the records to show that possession was delivered to Robbins by the sheriff under a writ issued on a judgment in ejectment entered on the contract for default of lessee, and so was in possession when the writ in this suit was served upon him. The purposé was to show that Neal’s right had ended before the sheriff’s sale. On objection by plaintiff the court rejected the testimony. This evidence was clearly [457] admissible. We must take tbe written offer as the exact truth; if admitted, it would have shown a resumption of the possession by Robbins under the terms, of hjs contract before the sale on the mechanic’s lien. The grounds on which the evidence was objected to were not sufficient to warrant its rejection; they, at most, aver irregularities in entering the amicable action and confessing the judgment; but Robbins was put in possession under a formal writ issued on a judgment of a court having jurisdiction, and although afterwards the judgment was opened to let the defendant, Neal, into a defense, no restitution of the premises was directed, and the court could not, in a collateral action between the purchaser on the mechanic’s lien and the landlord, try the merits of an issue to open the judgment entered on the contract between the landlord and tenant. The mechanic’s lien could bind only Neal’s interest; that interest is measured by his contract; the record, if admitted, would have shown his interest had disappeared before the sheriff’s sale. As long as the record stands with a judgment not set aside and writ upon it, by which Robbins holds possession, his right cannot be questioned in a collateral action between him and third parties. The evidence ought to have been admitted, and if it had shown what it purports to show, that would have been the end of plaintiff’s case, until Neal, in the original judgment, succeeded in having it wholly set aside, and the possession of the premises ordered restored to him. The judgment is reversed, and a venire facias de novo awarded.