Farmers & Mechanics' Bank v. Ege , 9 Watts 436 ( 1840 )

The opinion of the court was delivered by

Rogers, J.

The money now in court for distribution, arises from the sale of the personal estate of Mentor Perdue, who was the tenant of George Ege, under a lease for the Mount Holly Iron Works, dated the 25th of February • 1837, for five years, at the annual rate of six thousand dollars, payable in advance on each successive 1st of April. The Farmers & Mechanics’ Bank purchased the premises at sheriff’s sale, and on the 24th of August 1839, the sheriff of Cumberland county acknowledged the deed. The property was sold on a judgment of the bank against Ege, entered in April 1820. The bank claims the rent which accrued from the 1st of April 1839, and relies on the 119th section of the act of the 16lh of June, 1836—“If any lands or tenements shall be sold upon execution, as aforesaid, which, at the time of such sale, or afterwards, shall be held, or possessed by a tenant, or lessee, or person holding, or claiming to hold the same under the-defendant on such execution, the purchaser of such lands or tenements shall, upon receiving a deed for the same, as aforesaid, be deemed the landlord of such tenant, lessee, or other person, and shall have the like remedies, to recover any rent or sums accruing subsequently to the acknowledgment of a deed to him, as aforesaid, whether such accruing rent may have been paid in advance, or not, if paid, after the rendition of the judgment on which sale was made, as such defendant might have been, if no such sale had been made.” The purchaser is placed in the situation of the original landlord, with the like remedies, with a provision, (which could not fi)qm part of the original bill,) that he should be entitled to the accruing rent, even if paid in advance, provided it was paid after the rendition of the judgment on which the sale was made. To what class of cases does this clause apply? and what evils was it designed to remedy? and what is intended by the expression “the payment of the rent in advance?” Can it apply when it is part and parcel of the contract, that the rent should be so paid? Such a construction would be impolitic and unjust. For, suppose Perdue, in compliance with his contract, had voluntarily paid, or had been compelled by distress, to pay the whole rent to Ege on the 1st of April—could it enter into the minds of the legislature, that he should be bound to pay it again, after the sale, on the judgment? How could he tell whether the bank would proceed on their judgment? You place him in this perilous predicament. If he does not pay, he is liable to a distress, and if he discharges his obligation with punctuality and good faith, according to his contract, he does it at the risk of being compelled to pay it again at the option of the creditor. But what was the mischief this clause was designed to reach? It strikes me it was intended to avoid the fraud and collusion which may arise either from payment, or the allegation of the payment in advance, where the rent was not, by the terms of the lease due. The words of the court are, “ whether the accruing rent may have been paid in advance.” In advance of what? Why clearly, in advance of the time when the rent became due. The legislature supposed, that where a judgment was rendered, and the tenant chose to anticipate his payments, it must be done at his own risk, and in this, as it is done voluntarily, there is nothing of which he can complain. But where the payment is made in compliance with the contract, and there is no danger of either fraud or collusion, it does not call for so extraordinary a remedy. They surely could not intend to prohibit such agreements, nor could they have designed to prevent the tenant from fulfilling his contract with said bank. It moreover seems to me, that this, by any fair construction, cannot be viewed as a rent accruing after the acknowledgment of the sheriff’s deed. The rent, according to the terms of the deed, accrued, or was due, (which I take it is the same thing,) before the acknowledgment. We feel a just reluctance to wrest words from their ordinary import, to give them, a construction which would lead, to a violation of good faith, and in many cases would operate so unjustly.

The lease between Ege and Perdue was dated the 25th of February 1837, but the judgment on which the land was sold, was entered in April 1820. The purchaser, therefore, had the right to affirm, or disaffirm the lease. It seems clear, that he elected the latter, and if so, what right has he to rent which he can only claim in quality of landlord.? Before the expiration of the lease, he gave notice, as he had a right to do, to Perdue, to quit, and moreover sued out a writ of estrepement to prevent waste. The latter was an equivocal act, but connected with the former, it removes all doubt as to the intention of the bank.

Judgment affirmed.