2 Assistance Building & Loan Ass'n v. Wampole

Opinion by Beaver, J., The error complained of by the appellant is the refusal of the court below “ to enter judgment against the defendant for want of a sufficient affidavit of defense.” The grounds upon which this refusal was based are not given and we are left, therefore, to seek them in the plaintiff’s statement and the defendant’s affidavit of defense. Appeals under the provisions of the act of April 18,1874,, P. L. 64, have not been favored by the Supreme Court. From Griffith v. Sitgreaves, 81* Pa. 378, one of the earlier cases, to Paine v. Kindred, 163 Pa. 638, the decisions have been practically uniform. We may say, in the language of the latter' case:: “We do not mean to interfere where rules for judgment have-been discharged in the lower courts in doubtful and uncertain cases, but only in such as are very clear and free of doubt.”' But where there is a case clear and free of doubt our duty is: not doubtful. The plaintiff’s statement shows it clearly entitled to the rents,, accruing subsequent to the sheriff’s sale, under the lease from Wier to Wampole, in accordance' with the provisions of the-119th section of the Act of June 16, 1836, P. L. 755. Doe& the affidavit of defense, giving the fullest effect to its statements,. [242] raise any issue of fact between the plaintiff and the defendant ? We think not. The plaintiff, as is admitted by the defendant, gave notice subsequently to the sale of its claim for rent, which was in effect an exercise of its option to make him its tenant. The defendant practically admitted the claim by paying part of the rent. He endeavored to limit or modify the effect of this payment by stating the reasons which influenced him to make it. These, however, were based entirely upon mental states and processes which could not, in the nature of the case, be given in evidence on the trial of the cause. His acknowledgment of the lease and of his obligation thereunder are further shown by the notice given by him to the plaintiff, in accordance with the terms of the lease, of his desire to have it discontinued after the expiration of the then current year. What his intention may have been in giving this notice is not the subject of inquiry. We can only inquire as to the legal effect of the admitted fact. There can be no question as to the plaintiff’s right to recover: Menough’s Appeal, 5 W. & S. 432. It was not only the purchaser at sheriff’s sale but was the assignee of the lease. The defendant admitted its right to the rent by a payment in part and by doing such acts under the lease as Avere inconsistent with the claim of non-liability thereunder. Under the statement and affidavit of defense, there are no facts for a jury and, as we view the laAv of the case, the plaintiff is entitled to judgment. The decree of the court below is, therefore, reversed and judgment is uoav directed to be entered for the plaintiff and against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown to the court below why such judgment should not be so entered. A motion for reargument was made which Avas refused. Pee Cueiam, January 18, 1898: “ The effect on the lease of the sale under a prior incumbrance ” was not overlooked in the consideration of the case nor in the opinion filed therein. It is expressly stated that “ The plaintiff’s statement shows it clearly entitled to the rents accruing [243] subsequent to the sheriff’s sale under the lease from Weir to Wampole in accordance with the provisions of the 119th section of the Act of June 16, 1836, P. L. 755.” It is further considered in the latter part of the opinion, in which it is stated: “ There can be no - question ,as to the' plaintiff’s right to recover: Menough’s Appeal, 5 W. & S. 432 (1843). It was not only the purchaser at the sheriff’s sale but was the assignee of the lease. The defendant admitted its right to the rent by a payment in part and by doing such acts under the lease as were inconsistent with the claim of nonliability thereunder.” Duff v. Wilson, 69 Pa. 316, has no possible application here. In that case the sheriff’s vendee elected to disaffirm the lease and took possession of the premises, thereby evicting the tern ant, but Mr. Justice Shakswood distinctly says that “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.” The purchaser at sheriff’s sale under an incumbrance prior to the lease can affirm or disaffirm the lease at his pleasure. In this case the building association chose to affirm it and hold the defendant as its tenant and, in effect, exercised its option by demanding the rent. The whole case was fully considered and all the points raised in the original hearing sufficiently met in the opinion already filed. The motion for the reargument is therefore denied.