South Side Trust Co. v. Watson
Decision Date | 08 November 1912 |
Docket Number | 1,614. |
Parties | SOUTH SIDE TRUST CO. v. WATSON. In re HERRICK. |
Court | U.S. Court of Appeals — Third Circuit |
Alpern & Seder and Lowrie C. Barton, all of Pittsburgh, Pa., for appellant.
Lawrence P. Monahan, of Pittsburgh, Pa., for appellee.
Before GRAY, BUFFINGTON, and McPHERSON, Circuit Judges.
This is an appeal by the trustee from the allowance of a claim for rent against the bankrupt estate.
For the purposes of this case we assume that in February, 1911, a written instrument was executed, whereby the bankrupt became the lessee of certain premises for one year from May 1st at the monthly rent of $175, payable in advance. The adjudication was entered January 3, 1912, on a voluntary petition, and on the same day the South Side Trust Company of Pittsburgh, was appointed receiver-- afterwards becoming the trustee. The rent was then in arrears for November December, and January; but this sum has been paid and is not in dispute. On April 17th the referee allowed the landlord's claim for the remaining three months of the term-- February, March, and April-- and it is this allowance that is complained of. In our opinion it should not have been made, as we think will sufficiently appear from these additional facts:
On January 18th the receiver sold certain personal property of the bankrupt upon the leased premises. Before that day the rent for the month had been paid, and, as the Trust Company was in possession, it allowed the purchaser, Louis Shoop, a reasonable time to remove the goods. As the referee has found:
But the purchaser began to sell at auction, and this conduct is said to have annoyed the neighbors and offended the landlord. At all events, the landlord determined to exercise the following power reserved in the lease by paragraph 9:
'Upon breach or violation of any of the foregoing covenants, the said lessor shall have the right, in addition to the other remedies provided by law and hereinafter reserved, to forfeit the lease, and, upon five days' notice, to enter and repossess himself of said premises as of his original estate therein; and, further, the said lessee hereby authorizes and empowers any attorney of record to appear and confess judgment against him in any amicable action of ejectment for the premises above described, and to issue at once a writ of fi. fa. for all costs,' etc.
Accordingly an amicable action was brought on January 24th, in which the landlord declared:
Whereupon the landlord's attorney entered an appearance for the bankrupt and on January 24th confessed a judgment in ejectment for the premises. On the same day a writ of habere facias possessionem was issued, and on January 29th the sheriff returned that he...
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Oldden v. Tonto Realty Corporation, 282.
...stipulation for damages contained in the lease, a re-entry did release the tenant from liability for future rents. South Side Trust Co. v. Watson, 3 Cir., 200 F. 50; In re Gallacher Coal Co., D.C.N.D. Ala., 205 F. 183; In re H. M. Lasker Co., 3 Cir., 251 F. 53, certiorari denied Meyran v. W......
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...he could not claim rent for the balance of the term, notwithstanding the clause in the lease above mentioned. In South Side Trust Co. v. Watson, 200 F. 50, 118 C. C. A. 278, the lease provided that, in case of the bankruptcy of the lessee, the lessor might demand and receive the rent for th......
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