Kost v. Theis , 9 Sadler 336 ( 1888 )

Opinion by

Mr. Justice Williams:

This is an action of replevin in which the defendants acknowledge the taking of the goods named in the writ, and say they were taken for rent then in arrears. The replication denies the title of the defendants and that there was rent in arrears.

The case was tried on these two questions in the court below, and the assignments of error raise the same questions here. As to the first of these, the evidence show that Kost went into possession of the Germania Theater on the first' of August, 1883, under a written lease for one year from the Ladner Brothers, then the owners of the property. At the end of the first year the lease was extended by a parol agreement, and Kost continued in possession. On the 17th of September, 1884, Ladner Brothers assigned the lease to W. K. Harrity, who on the 17th of December, 1884, assigned to Theis. The Ladner Brothers were largely indebted to Theis, who held their mortgages covering the whole of the Germania property. Proceedings had been instituted upon these mortgages, and Theis had become the purchaser at sheriff’s sale on the 6th of December, 1884, of all the property except a piece of ground on which part of the stage was built, which, however, was covered by some of his mortgages and was subsequently purchased by him. This fact, that a portion of the property covered by the mortgage had not yet been brought to sale and purchased by Theis, was the ground of the denial of his title.

It is enough to say in regard to the question thus raised that the landlord’s warrant odes not rest on the deeds to Theis for the land out of which the rent issues, but on the agreement of Kost to pay rent. By virtue of his ownership of the lease Theis was clothed with all the rights and powers which the lessors could have exercised; and the fact that the title to a part or to all of the premises remained in them was wholly immaterial. They could not make use of their title to defeat the collection of the rent by their assignee of the lease. It is, therefore, unnecessary to invoke the general rule that a tenant cannot deny his landlord’s title, for in this case the tenant asserts the title of his landlord and insists that the assignee of the lease cannot collect the rent because the assignor still holds the title. To state the position of the tenant is a sufficient discussion of it.

The other question is equally free from difficulty. The written lease was for one year from August 1, 1883, at $5,000 per year, payable monthly in advance. As the end of the year approached, Kost gave to the Ladner Brothers notice that he could not continue to occupy the premises beyond the end of the year, unless necessary repairs were made upon the theater.

Accordingly, it was agreed that the repairs should be made by the tenant and their cost applied upon the rent. Under this arrangement Kost was to continue to occupy the premises at the same rent payable in the same manner. In other words, the lease -was continued with no change whatever in its terms, upon condition that the repairs were to be made and their cost allowed on the rent. At the same time Ladner Brothers requested Kost to pay the rent as fast as he could. In August, 1884, Kost paid four months’ rent in advance, viz., for the months of August, September, October, and November, and took a receipt therefor. This was unquestionably a good payment; and Theis, whose title was not acquired until December, is in no position to object. In October the repairs were completed and their cost ascertained to be $1,435. The application of this sum on rent was the condition on which the lease was continued; and it was expended for the benefit of the building and its owner.

The court below properly held the tenant entitled to credit for the money so expended, which paid the rent for December, Jan-nary, February, and part of March. Meantime the title of Theis had been acquired; and if other advance payments had been made, he had a right to insist that they were in excess of any legal liability resting on the tenant and not good as against him.

The errors assigned are not sustained and the judgment is affirmed.