In re the Receivership of Delaware Candy Co.

The Chancellor: As between the lessor and lessee, the right of the lessee to remove trade fixtures erected by it was subject to the condition that there was no rent in arrear at the termination of the lease. In the absence of any agreement on the subject the tenant would have had a right to remove the trade fixtures, though the rent be then in arrear, subject to the right of the landlord to distrain the same for the unpaid rent. Here, however, there was a specific agreement giving a right to remove fixtures under a certain condition, viz. payment of rent in arrear, and the condition displaces the common-law right to the extent of requiring a fulfillment of the condition before the right of -removal can be exercised. Tiffany on Landlord & Tenant, p. 1598, §243; Mathinet v. Giddings, 10 Ohio 365; Clemens v. Murphy, 40 Mo. 121; Allen v. Gates, 73 Vt. 222, 50 Atl. 1092; Cubbins v. Ayers, 4 Lea (72 Tenn.) 329; Holbrook v. Chamberlin, 116 Mass. 155. Here, before the receiver was appointed, the lease was terminated, not by lapse of time, but by the lessor under a power in the lease for non-payment of rent then in arrear. Subsequently the receiver, by order of the court, sold all of the trade fixtures put in by the tenant. This was without objection on the part of the lessor. He has explained, however, that he did not act earlier because he had mislaid his copy of the lease and did not recall the terms thereof giving him the right he now 144 asserts respecting the proceeds of sale of the tenant’s fixtures. This explanation seems satisfactory. It would be inequitable to deprive the lessor of any rights under the lease because of the receivership, or his apparent but not real loches in asserting his rights earlier. Assuming that the lessor was entitled to an order preventing the sale and removal of the fixtures by the receiver, which seems likely, then as he has explained his apparent loches in asserting his rights, the only relief which he now asks seems reasonable and equitable, viz. to give him a lien on the proceeds of sale by the receiver of the tenant’s fixtures for the rent due the lessor. This will be done in the due course of administering the estate of the insolvent corporation. Let an order be entered accordingly.