Demars v. Koehler

• Decision Date: 03 November 1897
• Parties: DEMARS v. KOEHLER.
• Court: New Jersey Supreme Court

38 A. 808

60 N.J.L. 314

DEMARS

v. KOEHLER.

Supreme Court of New Jersey.

Nov. 3, 1897.

(Syllabus by the Court.)

Error to circuit court, Essex county; Child, Judge.

Action by William Demars against Philip Koehler for breach of covenant. There was a judgment in favor of defendant, and plaintiff brings error. Affirmed.

Argued February term, 1897, before DEPUE, VAN SYCKEL, and LIPPINCOTT, JJ.

Johnson & German, for plaintiff in error.

Philip Lowy, for defendant in error.

LIPPINCOTT, J. The plaintiff below, who is plaintiff in error in this court, instituted an action against the defendant to recover damages for the breach of a covenant against incumbrances contained in a deed of conveyance in fee simple of lands and premises situate in the city of Newark. The deed of conveyance was made, executed, and delivered by the defendant and his wife to the plaintiff, on the 10th day of February, 1896. The deed of conveyance contained the usual covenant against incumbrances. On October 14, 1895, the defendant made a verbal lease to one Henry Mutscheler, for the premises described in the deed of conveyance, for a term commencing on the last-named day, and ending on the 1st day of May, 1897, at the rate of $25 rent per month. The lease was a valid and subsisting lease at the time of the execution and delivery of the deed, and at that time Mutscheler was in the actual possession of the premises. The evidence, which is undisputed, shows conclusively that, during the pendency of the negotiations for the purchase of the property by the plaintiff from the defendant, the plaintiff had actual notice and knowledge of the existence of this lease, and that Mutscheler was in actual possession of the premises. He had this knowledge at the time he signed the contract of purchase, and at the time the deed of conveyance was executed and delivered to him by the defendant. He was so informed by the defendant during the negotiations, and before the execution of any contract of purchase. This notice and knowledge the plaintiff admits. He was fully informed of the lease, and of the term, and the rent reserved; but, notwithstanding this, he continued his negotiations for the purchase, and accepted the deed of conveyance. These facts appeared at the trial by the evidence of the plaintiff. Immediately after the delivery of the deed, he entered into negotiations with Mutscheler to induce him to remove from the premises and surrender the lease, which he did on May 1, 1896, after being paid a certain sum for such surrender of the possession. There being no dispute of fact at the close of the case, the trial court directed a verdict for the defendant.

There can exist no question in law but that an outstanding term or an unexpired lease on the premises conveyed is an incumbrance, within the covenant against incumbrances contained in a deed of conveyance. Fritz v. Pusey, 31 Minn. 368, 18 N. W. 94; Jarvis v. Buttrick, 1 Metc. (Mass.) 480; Batchelder v. Sturgis, 3 Cush. 201; Carter v. Denman's Ex'rs, 23 N. J. Law, 261-272; Grice v. Scarborough, 2 Spears, 545; Maupin, Real Est. p. 293, § 125. But the quality of an incumbrance of an ordinary outstanding term or unexpired lease in respect to a covenant against incumbrances contained in a deed of conveyance is of a very different character, as distinguished from an incumbrance by way of a mortgage or judgment, or an incumbrance of a kindred character. The rent, by the common law, and now by statute, is an incident of the reversion, or, in other words, belongs and appertains to it, and follows it whithersoever and wheresoever and Into whatever hands it may pass, unless they are severed by the act of the owner or by the operation of the law. Condit v. Neighbor, 13 N. J. Law, 83-91; Ryerson v. Quackenbush, 26 N. J. Law, 236-249. The rent accruing after the conveyance of the reversion belongs to the grantee thereof. By statute in this state, the attornment of the tenant to a stranger is absolutely void. 2 Gen. St. p. 1920, § 26. Where the owner of a reversion grants the premises, the lessee is bound to pay the accruing rent to the grantee; and such grantee has all the remedies to enforce payment which the lessor had, and the grantee may sue in his own name to recover such rent, and it also vests the grantee with power to re-enter upon a forfeiture, to the same extent as the lessor. Crosby v. Loop, 13 Ill. 625; Howland v. Coffin, 12 Pick. 125; Duff v. Fitzwater, 54 Pa. St. 224; De Coursey v. Safe-Deposit Co., 81 Pa. St. 217; Scott v. Lunt's Adm'r, 7 Pet. 596; Kendall v. Carland, 5 Cush. 74; Ryerson v. Quackenbush, 26 N. J. Law, 236-250; Condit v. Neighbor, 13 N. J. Law, 83-91; Farley v. Craig, 11 N. J. Law, 262. It was formerly held that an attornment of the tenant was necessary to entitle the grantee of the reversion to stand in the place of the lessor, but that is now unnecessary by statute. The conveyance of the leased premises, together with the rents and profits thereof, and the reversion, operates in law as an attornment wherever the rent has not been reserved to a third party, or has been by some act of the parties severed from the reversion. Condit v. Neighbor, supra; Ryerson v. Quackenbush, supra.

In this case the rent was reserved by the lease as payable to the lessor, and necessarily to the grantee of the reversion, and not to a third party; and therefore the plaintiff, upon the delivery of the deed of conveyance, was entitled to the subsequently accruing rent; and it might very well be that the incumbrance of the outstanding lease or unexpired term would operate as a benefit to the grantee, rather than a detriment, which could never be the case if the incumbrance was a mortgage or judgment. This is the character of the incumbrance, of which the plaintiff had full and complete knowledge before his purchase and the delivery of the conveyance to him. But, assuming that it was an incumbrance against the covenant contained in the deed, the question arises whether...