Horwitz v. Davis

Bartol, J., L, delivered the opinion of this court: This is an action for use and occupation, instituted by the ■appellee against the appellant. The facts of the case, as disclosed by the record, are as follows: John R. Fowler rented the premises (for the use and occupation of which this suit is brought) from Davis, the appellee, for one yeax, commencing the 1st of April 1857, at a yearly rent, payable quarterly. The premises were occupied by Fowler as a dwelling and store house, and while so occupying them, he made an assignment to the appellant, for the benefit of his creditors, of his effects and property. The assignment was made on the 14th of September 1857, and was accepted by the appellant, who took possession of the goods which were in the store room, and occupied the store for the purpose of 'arranging the goods and effects, assigned to him, for sale, and selling the same; gave notice, by advertisement, that he would sell at public auction, on the premises, on the 22nd of September 1847, the goods, with the furniture and fixtures in the store, and did sell the same in pursuance of the advertisement, and on the following day offered to' surrender the key of the premises to the appellee, who refused to receive the same unless (he defendant would pay him the quarter’s rent about to fall due on the 1st of October ensuing, which the defendant refused to do, and this action was brought to recover for the use and occupation of the premises ¡by the defendant, as assignee of the lease. The court, at the instance of the plaintiff, instructed the jury “that there was evidence from which they might find that the defendant used and occupied the premises, as tenant to the plaintiff, and as assignee of the interest of Fowler, as lessee, and, if the jury should so find, their verdict ought to be for the plaintiff.” To this instruction the defendant excepted. [317] (Decided June 29th, 1860.) The deed of trust from Fowler to the defendant, was sufficiently comprehensive to convey the interest which the grantor had as lessee of the premises; but the trustee was not bound to accept of the assignment of the term; he had his election either to take it or not, as he might deem it for the benefit of the creditors, and unless he elected to take it, or went into possession and occupied the premises under the assignment, he would not be bound for use and occupation, as tenant. Turner vs. Richardson, 7 East., 336. Gibson vs. Courthope, 1 D. & R., 201, (16 Eng. C. L. Rep.,33.) Carter vs. Hammett, 12 Barbour, 263. See, also, the authorities referred to in Archbold,s Landlord & Tenant, 149 & 150, marg., (53 Law Lib., 151.) But if the assignee actually goes upon the premises and occupies them under the assignment, he becomes bound as tenant, and is liable under this form of action. A majority of this court are of opinion that, in this case, there was evidence of such occupancy, and that the judgment ought to be affirmed. The case of Dorrance vs. Jones, decided by the Supreme Court of Alabama, in 1855, (27 Ala. Rep., 630,) was very similar to this, in its facts and circumstances, and that court sustained the action for use and occupation. A majority of this court concur in the judgment pronounced in Dorrance vs. Jones, and refer to and adopt the reasoning and authorities on which it was based. Judgment affirmed.