Stark v. Hight , 3 Pa. Super. 516 ( 1897 )

Opinion by

Beaver, J.,

A lease for years is a chattel real. A building erected on a chattel is itself a chattel: Gaule v. Bilyeau, 25 Pa. 521. If this were not so as a matter of law, the lease of the 11th of December, 1888, between James B. Stark et al. and Benjamin R. Bedford, extended by an' agreement of Pierre Aslield, the assignee of Bedford, for five years from the 11th of December, 1893, to the 11th of December, 1898, made the building which was to be erected upon the leased premises personal property. The act of June 16, 1836 P. L. 755, provides that the amount of rent for which the goods and chattels taken by virtue of an execution and liable to the distress of the landlord shall be preferred shall be limited to the amount due for one year. It was held in Pattison v. McGregor, 9 W. & S. 180, that this act did not apply to the ground rent landlord and for a very obvious reason, for, if the owner of the fee and the owner of the ground rent were both entitled to have a year’s rent reserved as a preference, the very object of the limitation in the act of 1836 above referred to would be defeated. But there is, therefore, no analogy between a ground rent reserved and the present case. It iclaimed by the appellant in tins case that he was entitled to be first paid out of the proceeds of the sheriff’s sale the sum of $120, being the amount of two j'-ears’ rent, and this claim is based upon two considerations: First, because the sheriff returns that he sold the leasehold interest of land with a building thereon for $430. That “ there was no severance of the building from the leasehold. They were essentially one and were sold as one.” And, second, that the clause in the lease under which the lessee, who was the defendant in the execution agreed “ on breach of any condition to quit and give up peaceable possession of the premises to the appellants on ten days’ notice in writing ” was equivalent to the right of the lessor to re-enter and take possession of the premises. Neither of these positions is in our opinion sound. The leasehold interest is the estate which was conveyed by the lessor to the lessee. It does not embrace the house which was erected by the lessee and which, under the lease, he has the right to remove, unless the lessor should at the expiration of the lease exercise the option therein given him and take the building at an appraisement for which the lease provides. The agreement to quit on ten days’ notice conferred no right upon the lessors to re-enter and take possession without more. In case of a breach, they would have been compelled to resort to an action for damages, or, if they desired to secure possession, to obtain it under a landlord and tenant’s proceeding or by ejectment. If, therefore, the cases of Wood’s Appeal, 30 Pa. 274, Spangler’s Appeal, 30 Pa. 277, and Miners’ Bank v. Heilner, 47 Pa. 452, went to the extent claimed by the plaintiffs and were in other respects in point, they would not be applicable here. If it had been the intention of the plaintiffs to claim out of the proceeds of the sale the entire amount of rent due and not the amount allowed under the statutory preference of the act of 1836, they might have raised the question more clearly, when the notice of the rent due was given at the sheriff’s sale, by demanding a severance of the leasehold from the building and having it sold separately. There is no evidence in the record anywhere to show the amount for which the leasehold was sold. The plaintiffs in their argument now endeavor to suppty the lack of evidence upon this subject by calculating the value of the unexpired time of the lease at the annual rental value fixed therein; but there is nothing whatever to show that it sold at that price or that it would have sold at that price, if there had been a severance between the leasehold estate and the other property upon the premises at the time of the sale. This covers all the errors assigned by the plaintiff and, as we can discover nothing erroneous in the distribution made by the trial judge in the court below, the decree of distribution made by him is affirmed.