Wohner v. Handy ( 1890 )

Cooper, J.,

delivered the opinion of the court.

There may be other reasons why the appellant should not recover in this action than those we give. But since either of them is fatal to his right, we content ourselves by stating them. These are: — ■

First. The appellant is not, by subrogation or otherwise, the as-signee of the rent reserved by the landlord. Second. If he were such assignee, he could not recover against the appellee, between whom and himself there is neither privity of estate nor of contract, but his only remedy would be against Maloney, the tenant.

The appellant has not paid the rent to Horn, the landlord; on the contrary, it was paid by the sheriff out of the proceeds of the goods of the tenant, Maloney.

The right of the landlord to be paid was superior by law to the lien secured by appellant by his attachment against the tenant. The gravamen of his complaint is that he failed to secure a prior lien under circumstances in which it was not given by law.

But if we should concede to him the position he seeks, that of assignee of the rent reserved in the original lease, this suit could not be maintained. Handy, by his purchase at the sheriff’s sale of the term of the tenant, became assignee of the term, and liable only by reason of his privity of estate, to pay the rent reserved. His liability resting on such privity could only be invoked in behalf of some person with whom this privity existed. The appellant, if assignee by subrogation to the rent due the landlord, would not thereby come into privity of estate with the assignee of the term, and therefore could not sue him for the rent due. Allen v. Wooley, 1 Blackfd. (Ind.) 148; Hintze v. Thomas, 7 Md. 346; Platt on Covenants, 495 to 505; Hansen v. Prince, 45 Mich. 519.

Affirmed.