L'Hussier v. Zallee

Scott, Judge, delivered the opinion of the court. This judgment will be reversed. The plaintiff, by his complaint, shows that he has no right of action. He had conveyed all his interest. The right to sue for the recovery of the possession of the premises was in the plaintiff’s alienee. Upon the conveyance to him, he had his option, either to bring ejectment against Zallée, or to sue L’Hussier for damages resulting from his breach of contract in not putting him in possession of the premises conveyed. Until the alienee of the plaintiff had made his election, the plaintiff could not move in the matter. If the alienee had sued the plaintiff for breach of covenant in not delivering him possession, then the plaintiff, upon showing [15] tbis fact, would have been entitled to recover possession from the defendant, because the alienee would then have made his election, and shown that he claimed damages and not the premises sold to him. As the case now stands, it does not appear but that the alienee still claims the possession of the lot under his conveyance. If he does, what right has L’Hussier to sue for it. (Trull v. Granger, 4 Selden, 116; Coe v. Clay, 5 Bing. 440; Taylor on Land, and Ten. § 177.) The facts, as disclosed in the complaint, show that the alienee of the plaintiff, according to repeated decisions of this court, would not be entitled to the remedy pursued in this case. Judge Ryland concurring, the judgment will be reversed. LEONARD, Judge. Although the second lessee was entitled to the possession of the land on the delivery of the lease, and could therefore have sued the present defendant to obtain it, yet he was not bound to do so, but was at liberty to sue his landlord for the non-delivery of it. (Coe v. Clay, 5 Bing. 440; Trull v. Granger, 4 Selden, 118.) He bought the possession of the land for the time the lease was to run, and not a law suit, and, if this be so, we can not deny the landlord a remedy to recover the possession himself; and if he-be entitled to the possession from the first tenant, the remedy is by unlawful detainer appropriate to his case. I can see no reason why we should allow the tenant to defend his unlawful detainer of the land against his own agreement to restore it in the event that has occurred, on the ground that a subsequent lessee of the same landlord is also entitled to the possession. It is enough for him that he is bound by his own express agreement to restore the possession to his own landlord, and, if he do so, he will not be required to restore it to the second lessee. The judgment, I think, is right, and, in my opinion, ought to be affirmed.