Dyer v. Wightman

• Decision Date: 03 January 1871
• Citation: 66 Pa. 425
• Parties: Dyer <I>versus</I> Wightman.
• Court: Pennsylvania Supreme Court

Page 425

66 Pa. 425

Dyer versus Wightman.

Supreme Court of Pennsylvania.

November 7, 1870.

January 3, 1871.

November 7th 1870.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Allegheny county: No. 154, to October and November Term 1869 L. B. Duff (with whom was W. A. Leggatt), for plaintiff in error.—The appropriation by the railroad company was not an eviction: Tiley v. Moyer, 7 Wright 404; Kessler v. McConachy, 1 Rawle 435. Not being an eviction by the landlord, the rent was not extinguished: Reed v. Ward, 10 Harris 144; Linton v. Hart, 1 Casey 193; Fisher v. Milliken, 8 Barr 111; Workman v. Mifflin, 6 Casey 362. Warranty of possession is not broken by the entry for the purposes of the road: Dobbins v. Brown, 2 Jones 75; Folts v. Huntley, 7 Wend. 210. The legislature cannot annul the covenants: Sturges v. Crowninshield, 4 Wheat. 122; Mather v. Bush, 16 Johns. R. 233; Foote v. The City of Cincinnati, 11 Ohio 408; Parks v. Boston, 15 Pick. 198; Schuylkill & D. I. & R. R. Co. v. Schmoele, 7 P. F. Smith 271.

J. J. Kuhn (with whom was J. S. Ferguson), for defendant in error, cited: N. Penna. Railroad Co. v. Davis, 2 Casey 241.

The opinion of the court was delivered, January 3d 1871, by SHARSWOOD, J.

If the court below had been a court of law merely it would not be easy to answer the positions of the plaintiff or to resist the conclusion to which they logically lead. It is incontrovertible that nothing but a surrender, a release or an eviction can, in whole or in part, absolve the tenant from the obligation of his covenant to pay the rent: Fisher v. Milliken, 8 Barr 111. Thus if the premises have been wrongfully entered by a disseisor, and the tenant dispossessed for the entire term or even by the military force of a public enemy, or if they have been destroyed or rendered untenantable by earthquake, lightning, floods or fire, and thus all enjoyment by the tenant entirely lost, yet his covenant remains: Workman v. Mifflin, 6 Casey 369, and cases there cited. It is also equally well settled that a taking by the sovereign under the right of eminent domain is not an eviction: Frost v. Earnest, 4 Whart. 90; Dobbins v. Brown, 2 Jones 75; Ross v. Dysart, 9 Casey 452; Schuylkill and Dauphin Railroad Co. v. Schmoele, 7 P. F. Smith 271. The tenants are such owners as are entitled to compensation from the state or her grantee, and must look to that quarter for redress for any injury they may have suffered. It is their duty to attend to their rights in due season and to bring them before the legitimate tribunal which is to decide upon them: Frost v. Earnest, 4 Whart. 91; North Pennsylvania Railroad Co. v. Davis, 2 Casey 238; Workman v. Mifflin, 6 Casey 371. It may be true in strictness of law, considering the covenant to pay rent as unaffected by the proceedings of the state or her grantee to appropriate the land, that the landlord is only entitled to the present value of his reversion, subject to the term; and that on the same principle the tenant, remaining personally bound, but the subject of enjoyment having been taken from him, is entitled not merely to the value of his term, subject to the rent, but also to a sum of money which will indemnify him against the loss arising from his covenant to pay in futuro. Such appears to have been the determination in Foot v. The City of Cincinnati, 11 Ohio 408; Parks v. The City of Boston, 15 Pick. 198; Folts v. Huntley, 7 Wend. 210. But when this deduction is made from the value of the land in the damages awarded to the lessor for the time the lease has to run, and when the sum thus deducted or what might be considered as its present equivalent, the sum of the rents payable during the entire term, with a discount or rebate for the anticipation, is awarded to the lessee, to whom in equity does the money thus awarded to the tenant belong? Evidently to the lessor. It is decreed to the tenant for the purpose of enabling him to meet and discharge his personal covenant to pay the rent in futuro according to the stipulation in the lease. Surely equity, considering that by the act of the law the landlord has been deprived of all recourse to the land either by distress or re-entry, and is thrown altogether upon the personal responsibility of the tenant, would not suffer him after having received and pocketed the amount to snap his finger at his landlord and walk off. Not only all courts but all other tribunals in Pennsylvania proceed upon the principles of equity; for equity is a part of our law. It is the same system of justice whether administered through common-law forms or by bill and subpœna. They are bound to consider that as actually done which a chancellor would decree to be done. Thus equitable results are arrived at per saltum, without the circuity of turning the party round to another proceeding upon the equity side of the court. If a chancellor would regard the damages awarded to the tenant to indemnify him against his covenant to pay rent as in equity the money of the landlord, and decree it to...