Hayden v. Patterson , 51 Pa. 261 ( 1866 )

The opinion of the court was delivered, by

Agnew, J.

The difficulty in the case of the defendant below, lay not so much in the principles of law as in the conflict of testimony. The testimony of John Snider and Alfred Howell for the plaintiff, as to the possession of the defendant, and of Judge Ewing as to his relation as a tenant and the tender of rent, were sufficient to carry the case to the jury, who found the facts against the defendant. We must therefore assume that Jacob S. Hayden came into possession of the premises described in the declaration under Benjamin Hayden, who, according to Judge Ewing’s testimony, was in possession under Worthington with an understanding that he should pay rent, though the sum had not been definitely fixed. Alfred Patterson, Esq., the plaintiff below, purchased Worthington’s title and received the sheriff’s deed therefor in July 1863, while Hayden, the defendant, according to Snider’s testimony, was in possession from the 3d of March 1863 until the 1st of April 1864. The rent or sum payable therefor fell due after Mr. Patterson’s- purchase and the delivery of the sheriff’s deed.

The case falls within the 119th section of the Act of 16th June 1836, relating to executions, which directs, in cases of sheriff’s sales of real estate, that the purchaser upon receiving the deed shall be deemed the landlord of the tenant, lessee or other person holding or claiming to hold the same under the defendant in the execution; and shall have like remedies to recover any rents or sums accruing subsequently to the acknowledgment of the sheriff’s deed. The terms of the law are sufficiently broad to include all persons holding under the owner whose title is sold, whether as tenants by express lease for a stipulated sum, or as occupants by possession. Wherever the owner himself could maintain .an action for use and occupation, undoubtedly the same remedy lies in favour of the purchaser of his title at sheriff’s sale for any sum accruing after he has received his deed. Upon the facts of this case, an action for use and occupation certainly would have lain at the suit of Worthington, for the reasonable sum which fell due on the 1st day of April 1864; Menough’s Appeal, 5 W. & S. 432; Potts v. Lesher, 1 Yeates 576; Henwood v. Cheesman, 3 S. & R. 500.

By the terms of the Act of 1836, this remedy is transferred to Patterson, the purchaser of Worthington’s estate: Shaw v. Stanley, 2 Rawle 276 ; Bank of Pennsylvania v. Wise, 3 Watts 394; Britenger v. Barber, 5 Casey 66.

It is argued that Patterson by his purchase became a tenant in common with John Snider the co-tenant of Worthington, and his only remedy is to call Snider to an account for the rents and profits of Worthington’s interest in the land; the possession of one tenant in common being that of his co-tenant. But there is nothing to prevent a tenant in common in possession from letting out his share of the common property, and receiving rent for it. It is a postulate of the case as found by the verdict, that Hayden the defendant was in possession of Worthington’s interest under him. For the same reason Snider cannot be joined in the action with the plaintiff, for Hayden was not his tenant or holding under him.

This disposes of all the material questions in the cause, and the judgment is therefore affirmed.