Tilford v. Fleming ( 1870 )

The opinion of the court was delivered,

by Agnew, J.

— The ceremony of attornment having its origin in the feudal system of the middle ages, which esteemed it unreasonable to subject a feudatory to a new superior without his consent, is no longer necessary even in England, and is wholly unsuited to our condition. The statute of 4 Anne, c. 16, § 9, making all grants and conveyances of the remainder or reversion good and effectual without the attornment of the tenant, is in force in this state: Roberts’s Dig. 45. Attornment being unnecessary, it is not required to enable the alienee to be restored to the estate when the tenant’s term is ended. To prevent difficulty, however, the Act of 20th February 1867 authorizes the owner of the premises, who has acquired title by descent or purchase from the original lessor, to proceed under the Act of 14th December 1863, and Act of 11th April and its supplement. John Fleming was therefore the proper party to maintain the proceeding before the alderman; and it was not necessary he should be called assignee on the record. The complaint recites his title as assignee, which is sufficient.

It is a mistake to suppose that the attornment is the creation or initiation of a new lease, and that the term begins with the day of attornment. It is merely the assent of the tenant to his landlord’s alienation, and the acceptance of the alienee as the new landlord, leaving the lease itself untouched in other respects. It was not necessary to set forth the attornment in the record at all; the law being satisfied with the allegation of the conveyance by the lessor to the plaintiff, as the evidence of his right to recover possession.

Finding no error in the record, the judgment is affirmed.