Brown v. Howell

• Decision Date: 04 April 1901
• Citation: 66 N.J.L. 25,48 A. 1020
• Parties: BROWN v. HOWELL.
• Court: New Jersey Supreme Court

48 A. 1020

66 N.J.L. 25

BROWN

v. HOWELL.

Supreme Court of New Jersey.

April 4, 1901.

(Syllabus by the Court.)

Action by Mary D. Brown, administratrix of Sarah D. Manning, against Israel Howell. Heard on demurrer to decree. Judgment for plaintiff.

Argued November term, 1900, before the CHIEF JUSTICE, and COLLINS and DIXON, JJ.

E. R. Walker, for plaintiff.

Bayard Stockton, for defendant.

DIXON, J. On demurrer to a plea intended to justify a conversion of goods, it appeared that Sarah D. Manning, at the time of her death, in October, 1897, was tenant under the defendant of a store in Trenton; that five months' rent became due on November 1, 1897, and thereupon the defendant seized the goods in the store, which had belonged to the tenant, and sold them as a distress for the rent. Afterwards, in September, 1899, the plaintiff was appointed administratrix of said Sarah's estate, and in that character brought the present suit.

The plaintiff contends that after the death of a tenant, intestate, and when there is no administrator, a distress for rent cannot be legally levied. A close examination of the nature of this ancient remedy seems to support this contention. At the common law, rent, and the right to distress therefor, arose out of the tenure of land, which implied a lord or lessor and a tenant, between whom there existed a privity of estate. If the rent had been reserved to a stranger, or if the lessor had granted away the reversion to another, to whom the tenant had not attorned, or if the term of the tenant had ended, there could be no distress for rent, because there was no privity of estate between him to whom and him from whom the rent was due. Bradb. Dis. 28, 31, 37, 39, 127. On this principle, the executor or administrator of a lessor, in whom had been vested an estate in fee simple, fee tall, or for life, and to whom, in his lifetime, rent had become due from his tenant could not distrain for the arrearages, since such a freehold estate would not pass to the personal representative, and so between the latter and the tenant there is not the requisite privity. Prescott v. Boucher, 3 Barn. & Adol. 849. To remedy this defect the first section of 32 Hen. VIII. c. 37, was passed, which is copied almost verbatim in section 20 of our distress act (1 Gen. St. p. 1207). But in this enactment the common-law necessity of seisin or possession in the tenant, or some one claiming under him, is preserved. In the case just cited it was held that this statute did not embrace a lessee for years. If, however, the estate of the lessor had been an estate for years, so that on his death it passed to his personal representative, then the latter came into privity of estate with the tenant, and had by the common law a right to distrain. Bradb. Dis. 82. So, also, if the tenant die, leaving an unexpired term, which has passed to his executor or administrator, the requisite privity between the lessor and such personal representative exists, and the goods in his hands remaining on the demised premises may be distrained for rent accrued, either before or after the death of the tenant Braithwaite v. Cooksey, 1 H. Bl. 405; Bradb. Dis. 112. But if the tenancy were at will, and so terminated by the death of the tenant, the right of distress at common law was gone, and was not preserved by St. 8 Anne, c. 14 (section 17 of our act), because there could be no possession or estate in the right of the tenant. Turner v. Barnes, 2 Best & S. 435. Froin these considerations it seems to follow that if the tenant die intestate, leaving an unexpired term, there is not, before the appointment of an administrator, any person representing the decedent between whom and the lessor privity of estate can be said to exist, and hence the right to distrain must at least be suspended. The case of Keller v. Weber, 27 Md. 660, scarcely antagonizes this view; for there the wife of the tenant, who continued to reside on the demised premises after her husband's death, was regarded as his executrix de son tort, and so the case was brought within the recognized rule. But in the present case it is not alleged that any one had possession of the store demised after the death of the plaintiff's intestate.

There is, however, another legal doctrine to be considered, which the plaintiff must invoke in order to show her own...