Stridde v. Saroni

Dixon, C. J. As to the undivided half of the premises leased by the plaintiff to Eiewagen, the plaintiff was in possession at the time this action was commenced, and is therefor entitled to maintain it. The possession of his tenant was his possession. Eiewagen was not a party to the suit in the district court, and has never been disturbed or evicted. As to the other undivided half, that is, the half leased to Frederick Stridde at the time of the first lease to Eiewagen, the plaintiff was not in possession when this suit was commenced, and it cannot therefore be maintained. Frederick Stridde was evicted by process upon the judgment in ejectment against him in the district court. It was lawful for him, after such eviction, to accept a new lease from the defendant Saroni, who was the plaintiff in the action of ejectment. He did so, and henceforth this possession was the possession of his lessor, Saroni, and he could not, so long as such possession continued, attorn to the plaintiff or any other stranger, or become the sub-tenant of Eiewagen, to whom the plaintiff subsequently leased the whole premises. [177] This last conclusion is very plain; for it is expressly declared by statute, that every suck attornment shall be absolutely void, and shall not in any wise affect the possession of the landlord. R. S., ch. 91, sec. 1. The only difficulty arises upon the first proposition, as to the right of Frederick Stridde to accept a lease from Saroni after having accepted one from and gone into possession under the plaintiff. The statute referred to, which declares the attornment of a tenant to a stranger void, contains some exceptions, one of which is where the tenant attorns “ pursuant to or in consequence of a judgment or order of a court of competent jurisdiction.” Frederick Stridde took the' lease from Saroni in consequence of the judgment in ejectment against himself in the district court, under which he had been evicted. But at the time the ejectment suit was commenced against him he was in possession as the tenant of the plaintiff, and another section of the landlord and tenant act above referred to (sec. 18, ch. 91), provides that every tenant upon whom any process, proceeding, or notice of any proceeding, to recover the land occupied by him, or the possession thereof, shall be served, shall forthwith give notice thereof to his landlord, under the penalty of forfeiting the value of three years’ rent of the premises occupied by him, which may be sued for and recovered by the landlord, or person of whom the tenant holds. Other provisions of statute are to be found relating to the same or kindred subjects. See secs. 1, 2, 5 and 15, ch. 146, R. S. Frederick Stridde gave no notice of the action to the plaintiff, and allowed judgment to be taken by default; whence it is contended that the judgment in ejectment, and the lease from Sa-roni to Frederick Stridde, are inoperative as against the plaintiff. The contrary seems to be the settled rule of law in such cases. The possession is adversely and completely changed by virtue of the judgment; and the landlord is, so far, bound by the judgment, notwithstanding the want of notice; though he [178] is not bound as to the title, or future right of possession. The tenant who neglects to give notice, violates his allegiance to his landlord; but that is only a matter between him and his landlord, and not one which can affect the party who' has recovered possession from the tenant, except the recovery be collusive, or obtained by tampering with the tenant. It is the same as if the tenant had delivered over the possession wrongfully to another person. The landlord must bring an action of ejectment to recover it. And the possession being lawfully recovered by the plaintiff in ejectment, he may execute a lease to the former tenant, or any other person, and such lease will be valid. Goodtitle v. Badtitle, 4 Taunt., 820; Stewart v. Roderick, 4 Watts & S., 188; Foster v. Morris, 3 A. K. Marsh., 609; Lunsford v. Turner, 5 J. J. Marsh., 104. Hence the lease from Saroni to Frederick Stridde was valid, and the attornment of the latter as subtenant to Fiewagen was void. In this view of the case, it becomes unnecessary to decide as to the sufficiency of the notice given to redeem before the execution of the tax deed; for whether it was sufficient or insufficient, the result in this case must be the same. If sufficient, the plaintiff must be defeated as to the undivided half leased by the defendant to Frederick Stridde, because of that half he is not in possession, and the defendant is; and if insufficient, we are still precluded from inquiring into that matter, because the plaintiff was in the actual and continued occupation of the other undivided half for three years next after the recording of the tax deed. There can be no doubt, we think, that the want of notice, assuming it to have been defective, was but an irregularity, which was cured by adverse possession and lapse of time under the statute. By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.