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pealed. And we must hold, that the construction giver to that Act by the British courts was intended also to be adopted.
The facts in this case show such a privity of contract as brings it fully within the rule announced in the above cases. Appellee paid to appellant several instalments of rent falling due under the lease after it was assigned to him. By paying the rent, the lessee fully recognized the appellant as his landlord, and created the necessary privity of contract to maintain the action.
The case of Chapman v. McGrew, 20 Ill. 101, announces a contrary doctrine. In that case this question was presented, and notwithstanding the lessee had fully recognized the assignee of the lease as his landlord, it was held that the lessor of the premises might maintain an action to recover the rent. In that case, the fact that the lessee had attorned to the assignee, was given no weight, and the fact that such privity was thereby created as authorized the assignee of the lease to sue for, and recover the rent, was overlooked. In that, the decision was wrong. The right of action could not be in both the lessor and his assignee, and the privity thus created gave it to the latter.
The subsequent case of Dixon v. Buell, 21 Nl. 203, only holds that such an assignee, whether he holds the legal or equitable title to the lease, may have a claim for rent growing out of the lease, probated and allowed against the estate of the lessee. That case has no bearing on the case at bar. The judgment of the court below is reversed and the cause remanded.
*-**** Judgment reversed.
Seace stof by some
PERRIN v. LEPPER. allornment not
SUPREME COURT OF MICHIGAN. Уиллу
(Reported 34 Mich. 292.] ERROR to Calhoun Circuit. T. G. Pray, for plaintiffs in error. Brown and Patterson, for defendants in error. MARSTON, J. / Brown and Van Arman, being the owners, as tenants in common, of certain property in Marshall, on the 6th of September, 1859, leased the same to defendants for a term of five years from and after that date, for which defendants agreed to pay them two hundred and seventy-five dollars per year, payable quarterly. On the 12th day of April, 1862, Van Arman by warranty deed conveyed his interest in said premises, together with the rents, issues and profits thereof, to plaintiffs, who, about the 14th of April, 1862, gave defendants notice of such purchase, and that they, the plaintiffs, would require one-half the rent from and after that time.) This request not having been complied with, plaintiffs, December 29, 1863, commenced this action to recover the amount of rent claimed by them. In their declaration they declared specially upon the lease, setting forth the conveyance by Van Arman to them, and also inserted a count for use and occupation. The court charged the jury that in order for plaintiffs to recover upon either count, it was incumbent on them to prove that before the action was commenced the Leppers had recognized and acknowledged the relation of landlord and tenant as existing between them ; in other words, that there had been an attornment. There being no such evidence, plaintiffs failed. To this ruling they excepted, and the question here raised is really the only one in the case. It is true that counsel for defendants in error insists that the plaintiffs, even if entitled to recover, could not sue alone, but must bave joined their co-tenant of the reversion in bringing this action. It may be doubtful whether such a question properly arises under the ruling of the court, but as a new trial must be ordered, and this question may again come up, we may as well dispose of it at the present time, by saying that the non-joinder could only be set up in abatement, which was not done in this case, and if not so pleaded, it would merely go to apportion the damages. Achey v. Hull, 7 Mich. 430.
It has come to be the generally accepted doctrine in this state, that a person who is owner of real estate, personal property or choses in action, or who has an interest therein, mas grant, convey or assign his right or interest, without the assent or acquiescence of any third person. and that the grantee or assignee will take, hold and enjoy the property so acquired in the same manner and with the like rights that his grantor or assignor had. The law has always been very liberal in this state in permitting assignments of choses in action, and now permits the assignee to sue and recover thereon in his own name. The lessor of real estate may convey his reversion, and his grantee will be entitled to the rents accruing thereafter, or he may assign the reversion, reserving the rents, or assign the rents due and to become due. In either case when the rents are assigned, the assignee may sue and collect them in his own name under our statute. The conveyance from Van Arman to plaintiff's was of his entire interest in the demised premises, " and the reversion and reversions, remainder and remainders, rents, issues and profits thereof." The effect of this conveyance was not to release defendants from the payment of rent; they could no more thereafter than before retain the beneficial use and enjoyment of the demised premises and at the same time be exempt from the payment of rent under their lease. Van Arman, however, after his conveyance was no longer entitled to collect this rent. That right he had transferred and assigned to the plaintiffs. If defendants, by refusing to attorn to the plaintiffs, can prevent their collecting, the only effect would be to complicate matters and place obstructions in the way of the sale of demised premises. The doctrine of attornment grew out of the peculiar relations existing between the landlord and his tenant under the feudal law. The landlord could not alienate the estate without the consent of his tenant. This consent was called an attornment. It was founded upon a state of society which certainly never had any existence in Michigan. The peculiar reasons and relations out of which this doctrine sprung never having had any existence here, why should the rule itself? Where the reasons from whence a rule arose cease to exist, the rule should cease also. In a country where they never existed, the rule should not be adopted. Of course there may be exceptions to this. Other reasons for continuing a rule may arise while those from whence the rule grew have passed away, but we discover none such in this instance. The doctrine of attornment is inconsistent with our laws, customs and institutions. It may serve a useful purpose in estopping a tenant from denying the title of a landlord to whom he has attorned, but beyond this it can be of but little if any use. The common law of England is not to be taken, in all respects, to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation.” Story, J., in Van Ness v. Pacard, 2 Pet. 144 ; or as was said in Lorman v. Benson, 8 Mich. 25: “ Questions of property, not clearly excepted from it, must be determined by the common law, modified only by such circumstances as render it inapplicable to our local affairs." Cooley's Const. Lim. 23 and note.
I am of opinion that the court erred in charging the jury that an attornment was necessary to entitle the plaintiffs to recover. The judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred.
RELEASE AND SURRENDER.
Lit. $$ 444, 445, 459, 460. Releases are in divers manners, viz. releases of all the right which a man hath in lands or tenements, and releases of actions personals and reals, and other things. Releases of all the right which men have in lands and tenements, &c. are commonly made in this form, or of this effect.
Know all men by these presents, that I, A. of B. have remised, released, and altogether from me and my heirs quiet claimed: (me A. de B. remisisse, relaxasse, et omnino de me et hæredibus meis quietum clamasse): or thus, for me and my heirs quiet claimed to C. of D. all the right, title, and claim (totum jus, titulum, et clameum) which I have, or by any means may have, of and in one messuage with the appurtenances in F. &c. And it is to be understood, that these words, remisisse, et quietum clamasse, are of the same effect as these words, relaxasse.
Also, if a man letteth to another his land for term of years, if the lessor release to the lessee all his right, &c. before that the lessee had Release lo entered into the same land by force of the same lease, such release is were not void, for that the lessee had not possession in the land at the time of e lundis the release made, but only a right to have the same land by force of the lease. But if the lessee enter into the land, and hath possession of it by force of the said lease, then such release made to him by the feoffor, or by his heir, is sufficient to him by reason of the privity which by force of the lease is between them, &c.
In the same manner it is, as it seemeth, where a lease is made to a man to hold of the lessor at his will, by force of which lease the lessee hath possession : if the lessor in this case make a release to the lessee of all his right, &c. this release is good enough for the privity which is between them ; for it shall be in vain to make an estate by a livery of these cannot seisin to another, where he hath possession of the same land by the give printed lease of the same man before, &c.
[But the contrary is holden, Pasch. 2 E. 4, by all the justices.] based
Co. Lit. 337 b. “ Surrender," sursum redditio, properly is a yield-Smesneden ing up an estate for life or years to him that hath an immediate estate foas. in reversion or remainder, wherein the estate for life or years may drown by mutual agreement between them.
LIT. $$ 167, 586. Also, in some boroughs, by the custom, a man may devise by his testament his lands and tenements, which he hath in fee simple within the same borough at the time of his death ; and by force of such devise, he to whom such devise is made, after the death of the devisor, may enter into the tenements so to him devised, to have and to hold to him, after the form and effect of the devise, without any livery of seisin thereof to be made to him, &c.
In the same manner is it, where a man letteth such tenements devis- t.. able to another for life, or for years, and deviseth the reversion by his, nos testament to another in fee, or in fee tail, and dieth, and after the tenant commits waste, he to whom the devise was made shall have a writ of waste, although the tenant doth never attorn. And the reason is, for that the will of the devisor made by his testament shall be performed according to the intent of the devisor; and if the effect of this should lie upon the attornment of the tenant, then perchance the tenant would never attorn, and then the will of the devisor should never be performed, &c. and for this the devisee shall distrain, &c. or he shall have an action of waste, &c. without attornment. For if a man deviseth such tenements to another by his testament, habendum sibi in perpetuum, and dieth, and the devisee enter, he hath a fee simple,
causa qua supra ; yet if a deed of feoffment had been made to him by the devisor of the same tenements, habendum sibi in perpetuum, and livery of seisin were made upon this, he should have an estate but for term of his life.
DISSEISIN AND OTHER OUSTER.
Lit. $$ 279, 385. And note that disseisin is properly, where a man entereth into any lands or tenements where his entry is not congeable, and ousteth him which hath the freehold, &c.
Descents which toll entries are in two manners, to wit, where the descent is in fee, or in fee tail. Descents in fee which toll entries are, as if a man seised of certain lands or tenements is by another disseised, and the disseisor hath issue, and dieth of such estate seised, now the lands descend to the issue of the disseisor by course of law, as heir unto him. And because the law cast the lands or tenements upon the issue by force of the descent, so as the issue cometh to the lands by course of law, and not by his own act, the entry of the disseisee is taken away, and he is put to sue a writ of entre sur disseisin against the heir of the disseisor, to recover the land.
LIT. SS 414, 415, 422, 423, 592, 595-600, 611, 698. Continual claim is where a man hath right and title to enter into any lands or tenements whereof another is seised in fee or in fee tail, if he which hath title to enter makes continual claim to the lands or tenements before the dying seised of him which holdeth the tenements, then albeit that such tenant dieth thereof seised, and the lands or tenements descend to his heir, yet may he who hath made such continual claim, or his heir, enter into the lands or tenements so descended, by reason of the continual claim made, notwithstanding the descent. As in case that a man be disseised, and the disseisee makes continual claim to the tenements in the life of the disseisor, although that the disseisor dieth seised in fee, and the land descend to his heir, yet may the disseisee enter upon the possession of the heir, notwithstanding the descent.
In the same manner it is, if tenant for life alien in fee, he in the
1 All socage land and two thirds of the land held by knight service were made devisable by will in writing by the Sts. of 32 Hen. VIII. (1540) c. 1, and 34 & 35 Hen. VIII. (1543) c. 5. Land held by knight-service having been turned into socage land by the St. of 12 Car. II. (1660) c. 24, all land has since that time been derisable.