David Bradley & Co. v. Peabody Coal Co.

Mr. Justice Sears delivered the opinion of the court. The only question presented upon his appeal is as to the effect of the payment of the $1,000 of rent by appellant to Wright before the appellee had acquired the reversion through sheriff’s deed and before Wright had assigned the lease to appellee. The rent reserved for the entire term of the demise was $20,000. Of this sum $19,000 was made payable at fixed times by specific provision of the lease. As to the remaining $1,000, no time was fixed for its payment. It would, therefore, be payable at the expiration of the term. The payment of it at any earlier period would, of course, be good, as between lessor and lessee. We are of opinion that such a payment in advance would also ordinarily be good as against one who, after the payment, acquired the reversion and assignment of the lease. At the common law there was no right of action upon the lease in a grantee of the lessor’s reversion; for there was no privity of contract between such grantee and the lessee. Nor could an assignment of the lease operate at the common law to invest the assignee with legal title to the rents. By act of Parliament in 32 Henry VIII, it was enacted in effect that the assignee of the reversion should be entitled to the rents. This became, by adoption, a part of our common law. In the absence of evidence to the contrary, it must he presumed to be the law governing in the State of Iowa, where the transactions now in question arose. But the courts of England and of this country have held that even after the enactment of that statute, yet it "required an attornment by the tenant to enable the grantee of the reversion to maintain an action for the rents due upon a lease made by his grantor, for although the assignment of the reversion might create a privity of estate between lessee and assignee, yet there would be no privity of contract until the lessee had attorned. Such, at least, is the construction of the statute in this State. Fisher v. Deering, 60 Ill. 114. Authorities elsewhere differ as to the effect of the statute and the necessity, after its enactment, of any attornment. 2 Taylor on Landlord and Tenant (8th Ed.), Sec. 439. Our Illinois statute, Sec. 14, Chap. 80, K. S., dispenses with such necessity of an attornment. Howland v. White, 48 Ill. App. 236. But in this case the fact that appellant, after the assignment, recognized appellee as its landlord and paid rent to it, operates as a sufficient attornment, and this is so under the common law of this country, and irrespective of the Illinois statute. But the right to sue for the rents due under the lease, whether by virtue of the English enactment or by force of our Illinois statute, is a right only to enforce that which the lessor himself might enforce. It operates in effect to put the assignee of the reversion in the place of his grantor or assignor, and vest the former with the rights of such grantor or assignor. If, before the grant or assignment, the rent had been paid, whether in advance or otherwise, the lessor could not collect it a second time by suit, and no more could his grantee of the reversion or his assignee of the lease. It is the same remedies by entry, action, distress, or otherwise, as the lessor or grantor possessed, which vest in the grantee or assignee by force of the statute. Therefore, if no other question arose in this case than the effect of a payment in advance of rent under the lease made by the lessee to the lessor before a grant of the reversion to another, we would hold that such payment was good to release the lessee from any claim of the grantee for the rent so paid. But another question does arise in this case, viz., the effect of the sheriff’s sale to appellee of the demised premises. This sale was made on June 18, 1894, and was upon foreclosure of a mortgage made by Wright in December, 1892. It is contended by the learned counsel for appellee that the effect of this mortgage and the sale upon foreclosure of the same was to make ineffectual, the payment of the $1,000 of rent, which was made by Wright to appellant. We have no doubt as to the effect of the mere giving of the mortgage. It imposed no limitation upon the right of lessor (who was the mortgagor of the reversion) to receive, or the right of the'lessee to make, payments in advance or otherwise, of the rent provided by the terms of the lease. If a mortgagee can be held to be a grantee of the reversion in whom the right to rents under the lease vests by force of the statute, as held in Scheidt v. Belz, 4 Ill. App. 431, yet, as suggested in that case, his right would only operate upon the lessee after he had notified the lessee that he elected to claim the rents as mortgagee. A somewhat 'different question arises as to the effect of the foreclosure sale. But we think that the sale could not affect the relation of appellant as lessee to Wright as lessor, to make payments of rent ineffectual when made after such sale, unless a notice of the sale was given to appellant. 2 Taylor’s Landlord & Tenant (8th Ed.), 442; Farley v. Thompson, 15 Mass. 18; F. C. M. Co. v. Melven, Id. 268; Stone v. Patterson, 19 Pick. 476; Smith v. Taylor, 9 Ala. 633; O’Connor v. Kelly, 41 Cal. 432; Winfrey v. Work, 75 Mo. 55; Weider v. Foster, 2 P. & W. 23. We are therefore of opinion that appellee acquired no right to the rent in question by reason of the mortgage or the sale upon foreclosure of the same, unless a notice of claim to rents under the mortgage or notice of sale was given to appellant. That any such notice was given to appellant before the payment by it of the $1,000 rent, is not shown by the record. The testimony of Loomis that he remembered that Mr. Wright was likely to lose his title to the property through foreclosure proceedings, we regard as insufficient in this behalf. It does not appear that he “ remembered ” it as of any specific time, whether before or after the payment of the rent in question. Mo other showing of notice is made. Mor does it appear from the evidence wffiether the rent was paid before or after the sale. There is evidence tending to show that some part of it was paid after the sale, but it is very indefinite and uncertain. We do not regard the conversation between appellee’s attorney and Wright or appellant’s representative at the time of the assignment, as sufficient to establish that the $1,000 was paid after July 1, 1895. We are of opinion that upon the evidence the recovery can not be sustained. The foregoing consideration is sufficient upon the questions raised as to instructions to the jury. It is unnecessary to discuss the contention of counsel as to a variance between proof and narr. by reason of clerical error in striking out the name of Wright and substituting the name of appellee in certain parts of the declaration, since such faults can be corrected before another trial. The judgment is reversed and the cause is remanded.