Royer v. Ake

The opinion of the Court was delivered by Kennedy J. The first error assigned is, that a Justice of the Peace bad no jurisdiction of this cause of action. This is certainly a case of rent, and the sixth section of the Act of Assembly, of the. 22nd qf March 1814 declares, that “Justices of the Peace and Alderm.en shall have original jurisdiction of all cases of rent, pot exceeding one hundred dollars; to be recovered.as debts of similar amount are recoverable. The plaintiff’s claim before the .Justice, as well as afterwards in court, being less than one hundred [464] dollars, falls directly within the express words of the act, and léaves no ground to entertain the least doubt about its being cognisable before a Justice oftheFeacé. The second error assigned is, that no demand was made of the rent by the plaintiff below, before he brought this action. It is contended that this ought to have been done; and the more especially here, when the plaintiff in error was sited in the character of assignee. It may be observed that in case of an indenture, or deed executed by both the lessor and lessee or, grantor and grantee, a covenant to pay the rent therein reserved arises on the words yielding and paying. Anon. 1 Sid. 447 pl. 9. Harper v. Burgh or Bird 2. Lev. 206. Webb v. Russel, 3 Term. Rep. 402 Vivyan v. Arthur, 1 Barn. & Cres. 416, S. C. 2. Dow & Ry 670. ft is a covenant which runs with the land, and will be binding on the assignee, without his being specially named. Porter v. Swetnam, Sty. 406. Isteed v. Stonely, 1 And. 82. Parker v. Wibb, 3 Salk. 5 Halford v. Hatch, 1 Doug. 183. Stevenson v. Lambard, 2 East. 575, & Vivyan v. Arthur, 1 Barn. & Cres 416, and as long as he continues to be assignee, he is liable for the rent in the same manner as the lessee or original grantee was. Of the authorities quoted'by the counsel for the plaintiff in error to support his proposition, that a previous demand was necessary to be made before this action could be sustained, Bufkin v. Edmunds Cro. Eliz. 537, seems to be the only one that is applicable. It wa's an action of debt for rent, in which a judgment had been rendered for the plaintiff, and by writ of error was taken into the exchequer chamber, where the judgment was reversed for want Of other averments in the declaration, beside that of a previous demand, but all the Justices and Barons, except Anderson, - are-said to have held, there ought to be a demand. • I have not been able to discover any authority beside this to the same effect; though I must acknowledge that there are but few books to resort to on the subject. I think that the precedents for declarations, to be found in books of authority, in actions of covenant and of debt for rent, do not warrant or support it. A distinction exists between the remedy by re-entry for non-payment of rent, and the remedies by distress, covenant and debt. In the first, a previous ■ demand is indispensably requisite; because the remedy by re-entry operates in derogation of the grant, and deprives the tenant .of his estate: As it is presumed that he is then residing on the premises, in order to pay the rent, for the preservation of his estate, the law very properly requires, that the very highest evidence of a contrary presumption, which is an actual demand made upon the land, shall be given before so severe a penalty as a forfei [465] tare of his estate shall be inflicted. Bac. Abr. Tit. Rent. [I.] page, 853, 5th Ed. But as is here said, “where the remedy for the recovery of the rent is by distress, there needs no demand previous to the distress; though the deed says “that if the rent be behind, being lawfully demanded, that the lessor may distrain, when the rent becomes due. So it is, if a rent charge” which is the case before the court, “be granted to A. and if itbe behind, being lawfully demanded, that then A. shall distrain: and he may distrain without any previous demand, because this remedy is not in destruction of the estate. It is here also said, that “the very taking of the distress is a legal demand, which is all that was required by the deed.” The same, I apprehend, may be said of the commencement of an action,of debtor of covenantfor the rent, that it is but a legal demand of it, from which the tenant may relieve himself by pleading on the return of the writ, that he was ready at the time and place, when and where the rent was to have been paid, ready to pay, but no one appeared to receive it, and that he has ever been and still is ready to pay, and at the same time bring the money into court;,this he can do with as much facility as he can relieve himself from the' effects of a distress by tendering the rent, which seems to be no hardship. But these cases are much stronger than the case under our consideration, because no demand is required by the terms of the deed. And in pages 356 and 357 of the same book itis said, “if the lessor forbears to make an actual demand when the rent is in arrear, he may recover it by action of debt or distress, and so continue the lease, because these remedies, being not in defeasance of the grant, the lessor may pursue them without an actual demand.” In this respect there can be no distinction between debt and covenant, because whenever the rent arises from a deed executed under the hands and seals of both parties, covenant will lie,, upon the same terms with- debt, for the rent which may become due. Thethird error is, that the court erred in rendering judgment in favour of the plaintiff below in this action, because a different remedy is expressly provided for by the terms of the deed containing the grant and the' reservation. It may perhaps be doubtful whether the remedy adopted in this case is not also expressly provided for by the same deed: because there are softie authorities which go to shew that the words “yielding and paying,” create an express covenant to pay the rent. See Newton v. Orsborn, Sty. 307. Porter v. Swetnam, Sty. 406, 431. Hellier. v. Casbard, 1 Sid. 240, 266. 1 Lev. 127, Roll. Abr. Cov’t. 519, pl. 10. But whether the covenant growing out of these words be considered express or implied, there is nothing in the other remedies mentioned in the deed, nor yet in any other part of that instrument, which tends to prove, that it was the intention of the parties to it, [466] that these words were not to have their ordinary operation and effect. Beside, the remedy given by these words is more favorable for the tenant, than the others which are there mentioned, and it would be strange as well as unreasonable, that because the grantor thought proper to have introduced into the deeds, for his greater security, remedies of the more severe and harsh kind, in order to compel payment of the rent, that the tenant, for that reason, if the grantor should feel so disposed, can not be indulged with. The more mild one is admitted to exist, if the others had not been mentioned. Upon a true construction of the deed, the grantor must be considered as having the right to adopt and pursue either of those remedies at his election, in case the rent should be in arrear. They are cumulative: and if so, it disposes of the fifth and last error, which is, that there were at all times goods sufficient on two of the lots, to have paid the rent in arrear for them, by the terms of the deed, no proceeding is to be had against the lots, in order to obtain payment of the rents becoming due upon them;-unless in the event of goods sufficient for that purpose not' being found; but there are no words of restriction, as to the grant- or’s proceeding by action of debt or covenant to recover the rents, whether goods sufficient to discharge them, are to be found upon the premises or not. The fourth error is the only remaining one to be noticed, and in which we think there is nothing. It is that the plaintiff below, had no right to join his claims for the rent sf each of the four lots, all in one action. I must confess, that I can perceive no legal principle whatever,rwhich favors this objection. Each of these demands is precisely of the same character, and existing between the same parties, which makes them most completely joinable. They are so perfectly so, that if the plaintiff beloiv had brought four suits instead of one, the court, upon the application of the defendant ought, and no doubt would, have ordered a consolidation of them, in order to avoid an unnecessary expence, and consumption of time in the trial of them, both to the county and to the parties, unless by doing so, it would have entitled the defendant to a longer stay of execution than he otherwise would have had a right to elaim. \ The judgment is affirmed..