St. Louis Public Schools v. Boatmen's Ins. & Trust Co.
| Decision Date | 08 January 1878 |
| Citation | 5 Mo.App. 91 |
| Parties | BOARD OF PRESIDENT AND DIRECTORS OF ST. LOUIS PUBLIC SCHOOLS, Respondent, v. BOATMEN'S INSURANCE AND TRUST COMPANY, Appellant. |
| Court | Missouri Court of Appeals |
1. The assignee of a lease is liable for rent only by reason of the privity of estate between him and the lessor, and this privity of estate is the assignee's right of possession under the assignment, and not his actual possession; and, in an action by the lessor against the assignee for rent, the measure of the latter's liability is measured by the extent of his possessory right, and not by the extent of his possession.
2. A lease was made to two persons, one of whom, by deed, assigned his undivided half-interest therein to a third person, who entered into exclusive possession and occupied the whole of the leased premises; the lessor sued the assignee for the amount of rent reserved in the lease. Held, that the assignee was liable only for an undivided half.
APPEAL from St. Louis Circuit Court.
Reversed.
S REBER, for appellant: The assignee of a lease is liable only by reason of the privity of estate.--Taylor's L. & T secs. 436, 443; Astor v. Miller, 2 Paige 68; Van Rensselaer v. Jones, 2 Barb. 653; Weidner v Foster, 2 Pa. 23. The privity of estate of assignee is his right of possession, not his actual possession.-- Gamon v. Vernon, 2 Lev. 231; Merarou v. Dawson, 5 Barn. & Cress. 482; Stephenson v. Lambard, 2 East, 575; Curtis v. Spitty, 1 Scott 737; Williams v. Bousanquet, 5 Eng. Com. Law 72; 1 Brod. & B. 238.
R. E. ROMBAUER, for respondent, cited: Damainville v. Mann, 32 N.Y. 201; Negley v. Morgan, 46 Pa.St. 281; Sanders v. Partridge, 108 Mass. 556.
It appears from the agreed statement of facts on which this cause was tried in the court below, that, in 1865, plaintiff leased, by deed, to Truesdale and Keating, certain premises for a term of twenty years, renewable at the option of the lessees, at $250 yearly for the first ten years, and $1,000 per year for the remainder of the term, the lessees to pay taxes. Other provisions in the lease are set out in the statement, but are immaterial for the purposes of this decision. Keating conveyed his individual half to Taylor, as trustee, to secure a debt; and, in 1867, defendant purchased at trustee's sale, on the foreclosure of the deed of trust, and at once took possession of the entire property; and, until November, 1875, paid all rent reserved by the lease, and all taxes, including those of that year. In November, 1875, the assignee refused to pay more than half of the rent and taxes, and from that time has paid one-half of the rent and taxes, and no more. Truesdale still retains his interest in the premises. The court found for plaintiff for the whole rent in arrear. There is no controversy as to the correctness of the amount found; the only question being whether, under these facts, defendant was liable for the whole amount of rent and taxes, or only for one-half. It is claimed by respondent that the appellant, who is in possession of the entire property as the assignee of one liable to plaintiff for the entire rent and taxes, is itself liable to plaintiff for the entire rent and taxes payable under the lease. Appellant contends, on the other hand, that the assignee, being liable only by virtue of the privity of estate between himself and the lessor, created by the assignment, is liable only to the extent of his estate, which is an undivided half.
In the consideration of this case, we have no aid from direct authority on the very point involved. The precise question seems never to have come up for judicial determination, except in a single instance. In that case, the reported opinion is deprived of the weight that it would otherwise have, from the unfortunate circumstance that, the premises of the learned judge who delivered it being wholly intenable, one is compelled to distrust the conclusion arrived at; which, of course, can only be correct by accident, and must be erroneous if arrived at by any process of right reasoning.
There can be no question that the assignee of a lease is liable only by the privity of estate between himself and his landlord. Arch. L. & T. 70; Smith's L. & T. 292; Hannen v. Ewalt, 18 Pa.St. 1. But it is assumed by the learned judge delivering the opinion in the case referred to (Damainville v. Mann, 32 N.Y. 197), that perhaps the assignee is not liable by virtue of the privity of estate; and he puts the liability on the ground of actual possession. It has not, we believe, ever been held that an actual entry under the assignment is necessary to make the assignee liable in respect of assignments by deed, which are regarded as effecting a transfer, not only of title, but also of the legal possession. The acceptance of the assignment creates the liability, and the legal possession which ownership implies is all that is required. Woodf. L. & T. 166, 289; Taylor's L. & T. 450-452; Smith v. Brinker, 17 Mo. 148. In Walker v. Reeves, Doug. 461, note, quoted in the New York case, the question was discussed whether the assignment imposed the obligation to pay rent. Lord Mansfield says that it does; that the actual possession is immaterial; and that the possession in law, by the assignment of the title which passed the possessory right, is sufficient. The case was that of a mortgagee who had not taken possession, and it was distinguished from that of an absolute assignee, who was assumed to be liable without entry. Although the cases in which the assignee in bankruptcy is held not liable to pay rent are put expressly upon the ground that an assent to the assignment is necessary to bind him, and the question of actual possession is considered in such cases only as it bears upon this assent (Turner v. Richardson, 7 East, 335), the learned judge in the New York case asserts that the true grounds of the decision in these cases is the question of possession, which seems to be not the fact.
After quoting a remark by Sheppard, the well-known author of the Touchstone, in an argument prefixed to the report of Webb v. Russel, 3 Term Rep. 394, which he interprets by the light of his peculiar view of the law, the learned judge boldly concludes that there is no privity of estate between the lessor and the assignee of the lease, where there is only constructive possession; and, having thus found an imaginary resting-place for his feet, he proceeds to construct thereon a fabric which can have no greater value than any other poetic fiction, because, like the stags of Tityrus, it rests on air. He proceeds to argue that the owner of the other undivided half of the lease in the case before him, who took by a separate assignment, is under no obligation to pay rent, not being in possession. This, clearly, is not the law. Coote's L. & T., and textbooks and cases, passim. Yet on the truth of this proposition he proceeds, mainly, to rest the decision of the whole question. It follows, he says, that defendant in possession is taking the property of the landlord without any responsibility to him (as if the lessor, before the determination of the term, had any right to say who shall occupy the premises); and this, he thinks, is manifestly unjust, because the assignee in possession, having all that is useful in the premises, should pay the rent as the condition of his enjoyment. But why, it may asked, should he pay a rent which he has never agreed to pay, and which may at the time of his possession be ten times the actual rental value? For, having what is useful in the premises, it would seem that he should only pay what may be shown to be the reasonable value of their use. But that is not the theory of this action, and is not what the lessor is seeking to recover from the assignee. However, whilst holding that defendant is liable, the learned judge says that he adopts this conclusion not without considerable hesitation. We cannot adopt this conclusion at all; and we think that this case, properly considered, even tells against respondent in the case at bar. It seems to be admitted in the opinion, that, but for an assumption which we cannot but consider as wholly unwarranted, the decision should be the other way.
The lessor looks for his rent, not to the person in possession but to the lessee; and if he rents to two, and by agreement between themselves, or otherwise, one of them has exclusive possession, or if they choose to keep the premises vacant, this in no way concerns the lessor. The relation of landlord and tenant does not exist between the landlord and the mere occupier; nor can one merely occupying land be sued for rent in an action of debt or covenant. On the other hand, it is nowhere intimated in the books that the assignee is liable on a quantum meruit, as for use and occupation. He is liable at the rate fixed by the lease of which he is the assignee. If the rent is not paid, the assignee in possession may be put out; but we can see no reason whatever why the assignee of an individual interest in a lease, though in actual possession of the whole premises, should be made to pay the whole rent reserved. Any such rule might work very great hardship in cases that may be easily supposed; while there seems to be no hardship in holding the assignee in possession liable only according to his interest as shown by the assignment itself. His interest by virtue of the assignment created his liability; and we do not see why the assignee of an undivided, and perhaps infinitessimally small, interest should, any more than a stranger, be liable for rent for the whole premises at the rate reserved in the lease, and which, obviously, may be no measure of their actual rental value, merely because his possession is, as it may well be, larger than his interest. If...
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