Horwitz v. Davis
| Decision Date | 29 June 1860 |
| Parties | THEOPHILUS B. HORWITZ v. ALLEN B. DAVIS. |
| Court | Maryland Court of Appeals |
Where a lessee makes a general assignment of " all his property of every sort and description," for the benefit of his creditors, it is sufficiently comprehensive to pass to the trustee the grantor's interest in the term.
But the trustee was not bound to accept the assignment of the term he had his election to take it or not, as he might deem it for the benefit of the creditors.
Unless the trustee elects to take it, or goes into possession and occupies the premises under the assignment, he will not be bound for use and occupation as tenant.
But if the trustee actually goes upon the premises and occupies them under the assignment, he becomes liable to an action for use and occupation as tenant.
If the trustee enters upon and takes possession of the premises and uses them for the purpose of selling the goods assigned, this is such an entry and acceptance of the assignment of the term as will make him liable for the rent, as assignee of the lease.
APPEAL from the Court of Common Pleas.
Action on the case brought on the 9th of January 1858, by the appellee against the appellant, for the use and occupation of a certain house and lot on Pratt street, in the city of Baltimore. Plea, that the defendant did not hold, use, occupy or enjoy the premises as alleged.
Exception. The evidence is fully stated in the opinion of this court. The deed of trust from Fowler to Horwitz, conveys " all the stock of goods, fixtures and furniture contained in the store, on the south side of Pratt street, No. 155, and all debts due him, the said Fowler, and choses in action to him belonging, and all his property of every sort and description, " upon trust, in the usual form, to sell the same and apply the proceeds to pay the debts of Fowler. The advertisement signed by Horwitz as trustee, states that it is a trustee's sale of the goods and fixtures in this store, and that he will sell the same at the store above named, by virtue of the above deed of trust. The court (MARSHALL, J.) granted, at the instance of the plaintiff, the instruction set out in the opinion of this court, and to this ruling the defendant excepted, and the verdict and judgment for $125 and costs, being against him, he appealed.
The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, J.
T. B. Horwitz and Geo. H. Williams, for the appellant, argued:
That there was no evidence to establish the relation of landlord and tenant between these parties, nor from which the jury could find that the defendant used and occupied the premises as tenant of the plaintiff, or that he used or occupied them as assignee of Fowler's interest as lessee thereof. The entry of the appellant as trustee, and not in the capacity of the assignee of the term, for the purpose of disposing of and removing the property belonging to the trust, as speedily as possible, and of immediately putting an end to all connexion with the premises, did not render him the tenant of the appellee, and as such, or in any other way, responsible for the rent of the premises, or any part thereof. 6 Johns., 48, Smith vs. Stewart. 7 H. & J., 255, Stoddert vs. Newman. Archbold's Law of Landlord & Tenant, 149, 150. Woodfall's Landlord & Tenant, 220. 3 Adol. & Ellis, 659, How vs. Kennett, et al. Moody & Malk., 481, Carter vs. Warne. 7 East., 343 to 345, Turner vs. Richardson. 1 Esp., 234, Bourdillon vs. Dalton. 2 G. & J., 326, Stockett vs. Watkins. 10 G. & J., 156, De Young vs Buchanan. There is no assignment of the lease in terms, and no proof that Fowler did not occupy the premises at the time of the sale. The appellant never saw the agreement between Fowler and Davis, creating the tenancy, and had no time or opportunity to elect whether he would take it or not, and it is submitted that the case of Dorrance vs. Jones, 27 Ala., 630, cited by the appellee, cannot overrule the English authorities above referred to.
T. A. Linthicum, for the appellee, argued:
That the instruction was properly given. The appellant entered under Fowler, who was tenant of the plaintiff, and held possession for several days. He had possession of, and control over, the key of the front or street door, giving access to the entire building. His tender of the key was evidence of his right to surrender the premises, and consequently of his right as assignee of the interest of the lessee. Having thus entered under the tenant, and as assignee of his interest in the premises, he became tenant to the appellee, and could not determine such tenancy without the consent of the appellee, his landlord. The assignment from Fowler was clearly sufficient to pass his interest in this term, and having gone into possession and occupied the premises under the assignment, he became bound as tenant. The...
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Cornblatt v. Bloch
...on that ground has been taken, unless they exceed, as they do not in this case, the amount claimed in the declaration." See, also, Horwitz v. Davis, 16 Md. 313. only remaining question to be considered is the propriety of the order of the court requiring the defendant to pay plaintiff a cou......
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Gaither v. Stockbridge
...the case in Martin v. Black, 9 Paige, 641, then there would have been some ground for the contention of the appellant, under the decision of Horwitz Davis. But, as we have seen, that is not the case here. 2. Whether the appellant had any such lien or claim upon the goods and chattels sold f......
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Gaither v. Stockbridge
... ... in doubt its opinion on the question ... In the ... opinion in Horwitz v. Davis, 16 ... Md. 313, we find this passage: "A majority of the court ... concur in the judgment pronounced in Dorrance ... v. Jones, [27 Ala ... ...