Tone v. Brace , 11 Paige Ch. 566 ( 1845 )

The Chancellor.

This is an appeal by the defendant from a decree of the vipe chancellor of the eighth circuit. For the reasons stated by the vipe chancellor, in the report of this case, upon an -application to renew the injunction, (1 Clark’s Ch. Rep. 503,) I think the 140th section of the article of the revised statutes relative to alienation by deed, (1 R. S. 738,) does not extend to the implied covenants of warranty as to quiet enjoyment of the demised premises in a lease of a mere term of years, creating only chattel interest in lands. Such a lease is not, in common parlance, called a conveyance of lands, tenements, or hereditaments; thoqgh an instrument by which the lessee might afterwards transfer his interest in the leasehold prernises to another might very properly be denominated a conveyance of his chattel interest as lessee. I am therefore of opinion that the supreme court erred in the case of Kinney v. Watts (14 Wend. 38,) in the construction of the statute itself, as well as in the application of it to a lease of lands lying in another state.

Although the decision in the case of Ives v. Van Epps, (22 Wend. Rep. 155,) may be considered as settling the principle that relief might have been obtained at law, by a re-coupment in damages, if the complainant had been aware of such decision, that case had not been reported when the suit was commenced at law, for' the rent. That decision also carried the principle of recoupment farther than it had been previously understood to be allowable. The remedy at law was therefore doubtful, and furnished a proper ground for the interference of this court, at the time this bill was filed. For the defendant was out of the state and was insolvent. The fact of insolvency was denied by the answer of the defendant; and it had not been established by the proofs at the time this case was before this court, upon the application to dissolve the injunction. But the insolvency is now satisfactorily established, notwithstanding the belief of some of the witnesses for the defendant, that he had property enough to pay all his debts if his creditors would wait until he should be able to sell his property at what these witnesses suppose it was really worth.

The decree appealed from must therefore be affirmed, with costs.