Reed v. Ward

1. A rent-service incident to a reversion will not be lost by a grant of part of the reversion; but will be apportioned. 2. Where a lessor, before severance, enters wrongfully into a part of the premises, the tenant may be discharged from the payment of the whole rent; but such result does not follow where the lessor only exercises his right as proprietor by disposing of such part of the estate as his necessities or convenience dictate. 3. A landlord by making sale of part of the demised premises during the lease, of which part the grantee takes possession, does not thereby forfeit his right to distrain for the proportionable part of the rent for the remainder of the premises which the tenant continued to occupy, whether the tenant consented to the sale and occupancy by the grantee or not. 4. The landlord’s advising the grantee to take possession of the part sold, does not alter the case. 5. Various payments made on a lease of premises for several years, without appropriation to any particular portion of the rent, are to be first applied to the rents which accrued on the first years of the term, or to the rents which first accrued under the lease.

Error to the Common Pleas of Erie county. This was an action of replevin by Thomas W. Ward against Nancy Reed to replevy certain property which had been levied on by virtue of a warrant of distress executed by her. The defendant made avowry, and claimed $949 for rent in arrear. On the part of the plaintiff it was replied that no part of the same was due for rent, alleging’ that since the making of the lease he had been evicted of two acres of the demised premises. Rufus S. Reed, in his lifetime, to wit, on the 1st day of February, A. D. 1843, leased a farm of about 400 acres to Thomas W. Ward, for the term of three years from and after the first day of April ensuing said date, for a certain yearly rent; said Ward took possession of the demised premises, and continued in possession after the expiration of the three years, with the understanding of the parties that the same lease was to be continued from year to year. Rufus S. Reed died in March, 1847, having previously made his will, by which he devised the said demised farm to his wife, Mrs. Nancy Reed, in fee, which was on the 31st day of March, 1847, duly proven and registered. Ward, the said tenant, continued to occupy the farm after the death of Reed, the same as before, until the 8th day of March, A. D. 1849, when the same lease was renewed by a writing on the same paper, signed by Mrs. Nancy Reed and T. W. Ward, extending said lease for the term of three years from the first day of April then next, at an increased rent. Payments were made from time to time by Ward, and endorsed on the lease generally, without any designation of any particular year’s rent, the-payments commencing the 20th day of November, 1844, and ending in 1851, leaving a balance of rent unpaid on the entire lease of $949.81, on the 1st day of April, 1851. Mrs. Nancy Reed, on the 13th day of May, 1850, conveyed one acre of the demised premises to the Girard Academy; and conveyed one other acre to William Jones, on the 18th day of November, 1850; and the grantees took possession of the said two acres. Whether Ward consented to the sales, was a matter in dispute. The two acres were improved land taken off the west line of the farm. Ward occupied the farm of over 200 acres of improved land, less the said two acres, till the expiration of his lease. Mrs. Reed issued a landlord’s warrant on the 18th day of August, 1851, for the rent in arrear on the 1st day of April, 1851, being $949.81, and distrained the wheat of said Ward on the premises ; he replevied the wheat as stated. It was claimed by Ward that he was not liable for rent after the alleged eviction. On the part of the plaintiff, points were submitted, viz. 1st. If the jury believe that the defendant sold a part of the demised premises to the Girard Academy on the day of May, 1850, and made an absolute conveyance thereof, without the agreement and consent of Ward, and that the vendees took possession thereof in the summer of 1850, or before the 1st of February, 1851, and have since occupied the premises, and kept the plaintiff out of possession, it is in law an eviction, and would suspend the rent not already due, and the defendant would only be entitled to the balance of the rents unpaid for the year ending April 1, 1850. 2d. If the jury believe that the defendant in November, 1850, sold a part of the demised premises to William Jones, and directed him to take possession, and that Jones took possession in January, 1851, without the agreement and consent of Ward, and has since occupied the land and kept Ward out of possession, it is in law an eviction, and would suspend the rent, and the defendant would be entitled to the balance of the rents, as stated in plaintiff’s first point. 3d. That to prevent the consequences of an eviction, the agreement and consent of the plaintiff to such sale and possession must be clearly proven by the defendant, and his merely not objecting to propositions made to him does not amount to such agreement and consent. 4th. That whatever payments have been made by plaintiff to defendant since February, 1850, must first be applied to that year’s rent, unless otherwise applied and appropriated by the parties themselves. 5th. Even if part of the demised premises were sold with the agreement and consent of the plaintiff, it would be such a rescission of the lease that the plaintiff would be deprived of his right of distress under said lease, and the defendant, in this action, would only be entitled to the rents already due at the time of such sale. 6th. That when there is an eviction of the whole or part of demised premises by the landlord, the whole rent is suspended and cannot be apportioned. Points, submitted on part of the defendant were as follows:— 1st. That the sale of two acres (out of a farm of four hundred acres leased by defendant to plaintiff) to the Girard Academy and Wm. Jones, was no eviction of the leased premises, and consequently is no suspension of the rent. 2d. That if the tenant continues to enjoy and use all the leased premises not occupied adversely, he must pay rent for the amount so used and enjoyed by him. 3d. That if the tenant intends to avail himself of the eviction for the purpose of suspending rent, he must so notify the landlord; and if the tenant acts as if the lease was still in force by continuing possession and paying rent as before eviction, he cannot after-wards avail himself of it for the purpose of avoiding payment of rent. 4th. “ That if the jury believe that the plaintiff in this ease held and enjoyed the balance of the premises leased as fully and perfectly, in proportion thereto, as if he had held and -enjoyed the whole, that he must pay rent for the amount so enjoyed, and is only entitled to a deduction pro rata for the land sold,” or at most for the amount mentioned therefor by the plaintiff, (viz.: $6 per acre.) 5th. That if the jury believe that the plaintiff was present at the time of surveying, or about there at the time, knowing that it was intended to sell off small portions of said farm, and did not then make any objection thereto, that it is an assent to such sale, and he can only have a deduction for as much as he valued the use of the land, and is not an eviction. The Court charged the jury, inter alia, that the question was not whether the acts of the defendant would defeat her from recovering the rent due by action for use and occupation, or even by action of covenant on the lease, but whether the defendant had the right of distress. He charged that by the sales the certainty necessary to support a distress was destroyed, and that it had been decided, in numerous cases, that the tenant was not liable to such a disturbance. He submitted to the jury the amount that was paid on the lease of 1849, prior to the 1st of April, 1850; charged that if the rent for the year ending on 1st April, 1850, was paid, then the plaintiff would be entitled to recover; but if that year’s rent was not paid, then the verdict should be for the defendant. He further said, “ In ascertaining from' the evidence whether that year’s rent has been paid, the jury will take into consideration all payments since, unless appropriated to a subsequent year by the parties; the rule of law being that where the parties have not applied the payments, the law applies them to the oldest debt first.” In regard to the plaintiff’s points he charged in the affirmative; and in the negative to the defendant’s 1st, 2d, and 4th points. To the third point of defendant he charged that the tenant was not bound to give the landlord any notice. But the landlord acts upon his own responsibility, unless with the assent of the tenant, which must be proved. The third and fifth points were thus answered in the negative. Verdict was rendered for the plaintiff for one dollar damages. It was assigned for error that the Court erred in answering the plaintiff’s 1st, 2d, 3d, 5th, and 6th points in the affirmative. 2d. In answering the plaintiff’s 4th point in the affirmative, without explanation, under the particular circumstances of this case. 3d. In answering the defendant’s points in the negative. 4th. In not submitting to the jury the facts of the tenant consenting to the sale of the two acres, and agreeing, to an abatement of the rent of six dollars per acre, as testified to. 5th. In regard to the appropriation of the payments.