M.H.B. Company v. Desmond , 151 Wash. 344 ( 1929 )

In the case at bar, it does not appear that there was any collusion between the tenant and the landlord with intent to defraud the tenant's mortgagees of any rights which they might have. The tenant was behind in his rent, and had been served with a three-day notice to quit or pay rent, upon which it may fairly be presumed that the landlord had a right to start suit and obtain practically immediate possession of the premises under a writ of restitution. The majority opinion seems to hold that a tenant who is behind in his rent, and is subject to summary dispossession, can hand the keys of the premises to his landlord and demand a reasonable time within which to remove trade fixtures which he would be entitled to remove during the period of his tenancy, had he kept his lease in good standing. A tenant who is in arrears in his rent, and who has been served with a notice to pay the same or quit, is not in a very good position to demand anything. As is stated in Jones on Chattel Mortgages, § 123, quoted by the majority, one who has taken from a tenant a chattel mortgage upon a building erected by the tenant whose lease gives him the right of removal at the expiration of the lease, acquires no better right than the tenant himself. Jones on Landlord and Tenant, § 723, also quoted by the majority, is to the same effect. In the case at bar, it appears that the tenant supposed that the landlord would pay the mortgages upon the trade fixtures, but it does not appear that his supposition was based upon anything said or done by the landlord. In my opinion, the mortgagees are bound by the act of the tenant, their mortgagor, in, without reservation, surrendering the premises to the landlord. They had the right to protect their lien by seeing that the rent was paid, or taking other steps provided by law for their protection. In my opinion, a tenant, situated as was appellant Leftwick, must remove trade fixtures, which his lease allows him to remove, upon his own time and before the termination of his lease. The cases upon this point are in conflict, but I agree with the editor of Corpus Juris who says (vol. 26 C.J., Fixtures § 94, p. 707):

"It is perhaps difficult to see why a tenant should be enabled, by wrongfully holding over, to extend the period for removal, thus profiting by his own wrong."

As to the tenant's mortgagee, the doctrine is laid down in 26 C.J. 718, quoted by the majority.

Believing that the appellants who hold chattel mortgages upon the trade fixtures in question have lost their liens thereon, I dissent from the opinion of the majority holding that those liens are still in existence.