DeCoursey v. Guarantee Trust & Safe Deposit Co. , 1876 Pa. LEXIS 140 ( 1876 )

Mr. Justice Paxson

delivered the opinion of the court,

The record in this case presents but three questions that need be discussed. The first is, whether the assignee of a portion of the demised premises is entitled to proceed under the Act of 1772, to recover the possession of such portion. It appears that the Carpenters’ Company of the city of Philadelphia, by lease dated May 5th 1871, demised to Samuel G. DeOoursey, the plaintiff in ■error, a property on the east side of Carpenters’ court, for the term of two years from the 1st day of July 1871, reserving rent; that the said DeCoursey entered into possession of the demised premises ; that on the 31st of March 1873, the said Carpenters’ Company gave him notice to remove at the expiration of his said term; that subsequently, by deed dated the 31st of May 1873, the said company granted and conveyed to the Guarantee Trust and Safe Deposit Company, defendants in error, a lot of ground which included eleven feet of the demised premises. Thereupon the last-named company proceeded to recover the possession of the said eleven feet, under the Act of 1772, upon the notice previously given by the Carpenters’ Company. The latter did not join in the proceeding, nor did they take any steps to recover the possession of the residue of the said demised premises.

Our own cases do not furnish a distinct ruling upon the very point, yet its solution is not difficult. The mischief which the Act of 1772 was intended to remedy is clearly expressed in the preamble to said act: “And whereas, it frequently happens within this province that lessees or tenants for years, or at will, often hold over the tenements to them demised after the determination of such leases, and although such tenants have been required to deliver up the tenements to the landlord or lessor, who had occasion to dwell in his own house, or give, grant or demise the same to another, yet they have most unjustly refused so to do, and have obliged the lessor or landlords, at great expense, to bring ejectments against their tenants, and by the delays incident to law proceedings have kept the owner of the house at law, and out of possession for several years. For preventing; therefore, such unjust practices, be it enacted,” &c.

Prior to the passage of this act a landlord had no remedy against his tenant holding over after the expiration of his term, but the action of ejectment, a tedious and expensive proceeding. The object of the Act of 1772 was to furnish a summary proceeding in such cases, in which the legal .rights of the parties should be carefully protected and yet avoid the intolerable delays incident to a suit of ejectment. This case comes clearly within the mischief which the act sought to remedy. We have a demise, a notice to quit, a sale by the landlord, and a refusal by the tenant to surrender the possession to the landlord’s vendee at the end of the term. Does the fact that the proceedings were for a part of the demised premises only, oust the jurisdiction of the aldermen ? It may be conceded that the landlord cannot proceed under this act to recover the possession of a part of the demised premises and hold the defendant as tenant for the residue. No such attempt was made in this case. The notice to quit was for the entire premises. At the énd of the term the landlord had a right to proceed for the recovery of the whole. How is the tenant injured, because the proceedings are .only 'for the recovery of a part ? The purchaser of the eleven feet would have been entitled to his writ of ejectment to recover it. This case is within the mischief of the act, as well as its Very words : “ It shall be lawful for such a lessor or lessors, his or their heirs and assigns, to complain,” &c. The assigns may be assigns' of separate parts. If originally held in common, the parties may come to hold separate parts by partition. The owner of a part becomes the landlord quoad that part. By a grant of the reversion, the rent, which is an incident, passes with it. When there is an apportionment of the rent the tenant is subjected to separate actions and distresses: Co. Lit. 241. A tenant in common may distrain for his share of the rent, and it was held in Rivis v. Watson, 5 Mees. & W. 266, that a rent-charge may be divided by will or deed, so as to make the tenant liable, without attornment, for several distresses. “ If I make a lease of three acres, reserving three shillings rent, as I may also of the whole reversion, so may I dispose of any part of it. Since it is a thing in its nature severable, and the rent, as incident to the reversion, may be divided too, because that being made in retribution for the land, ought, from the nature of it, to be paid to those who are to have the land on the expiration of the lease.” Lord Chief Baron Gilbert on Rents 172. If the reversion may be divided and the rent apportioned, and each part of the apportioned rent recovered by distress or an action of debt, it is not easy to see the force of the argument urged on behalf of the plaintiff in error that it would be subjecting him to an undue burden to hold that he may be proceeded against under the Act of 1772 for a portion only of the demised premises. It is clear that an ejectment may be brought against him. But the very object of the act was to avoid the expense and delay incident to this form of proceeding. We are clearly of opinion that this case comes within the spirit, if not the very letter, of the Act of 1772, and the aldermen had jurisdiction.

This brings us to the second question. It is contended that the affidavit filed by the plaintiff in error deprived the aldermen and freeholders of jurisdiction, and that they should have proceeded no further in the cause. The thirteenth section of the Act of 1772 provides that if the tenant shall allege that the title to the lands and tenements in question is disputed and claimed by some other person or persons, whom he shall name, in virtue of a right or title accrued or happening since the commencement of the lease, so as aforesaid made to him, by descent, deed, or from or under the last _will of the lessor, the proceedings shall be arrested.

The affidavit filed hy the plaintiff in error does not bring the case within the provisions of the above section. It does not show. what the proviso in the act expressly requires, that there was a dispute as to the title to the lands; that the title was disputed and claimed by some other person or persons named, in virtue of a right or title accrued, or which had happened since the commencement of the lease, by descent, deed or under the last will of the lessor. What it does show is a. dispute as to when the term expired. This is one of the questions which the Act of 1772, by its express terms, requires the jury of freeholders to determine. The cases cited by the plaintiff in error upon this point do not sustain him. In Blashford v. Duncan, 2 S. & R. 480, no rent was reserved in the lease, which is necessary to give jurisdiction under the Act of 1772. Steel v. Thompson, 3 Penna. R. 34, wras clearly not within the act; so far from being the mere case of a demise at a certain rent, it presented unusual complications. Says Gibson, C. J., “Here the relation of the parties was contingent, if not doubtful, from the beginning, and when application was made to the justices it was not easy, as it appeared at the trial, to determine its nature or extent.” Again, “ The contract had more the aspect of one for the disposal of an interest in land on specified terms than of a lease by the actual proprietor to his tenant at a stipulated rent.” In Newell v. Gibbs, 1 W. & S. 496, the tenant offered to show that the title of Gibbs, the landlord, had expired by lapse of time, and that since the commencement of the lease the title had vested in a certain William Griffis by virtue of a purchase at a sheriff’s sale of the interest of Ezekiel Griffis, who was the lessor of Gibbs, the landlord. Cunningham v. Gardner, 4 W. & S. 110, is against the plaintiff. The affidavit of the tenant alleged that he had a right' to the lands, under the léase during his natural life, in consideration of which he was to erect buildings and improve the premises, and that he had done so. Said Huston, J.: “ This case presents a simple question of fact. Did Mr. Kirkpatrick agree to give a lease for life or for years to the tenant? This is the question as stated by the landlord, and by the tenant, and by the counsel before us. It would not be easy to show that twelve freeholders, summoned for the purpose from the county, would not be as competent to decide this fact as twelve jurors drawn from the wheel as jurors. The law is made for such cases. It is no more difficult than to decide whether a parol lease was for one year or for two years. It is a simple question of fact, and no legal knowledge required to the decision of it.” We may well apply the above language to the present case. The contention-was, whether under the stipulations of the lease, the term of the plaintiff in error was fully ended. This was a mere question of fact, simple in its nature, and entirely within the province of the jury to decide. It involved no question of title within the meaning of the Act of 1772.

The third question is whether the court below erred in not awarding restitution to the plaintiff in error. The record shows that the aldermen gave judgment for the pldintiffs (defendants in error) for possession of the eleven feet, with damages and costs; that they then proceeded upon the same day to issue a writ of possession, which the sheriff executed and returned, “possession given.” A certiorari was taken to the proceedings, and a petition was presented to the court below for a writ of restitution, on the ground that, Under the Act of 1865, a writ of possession could not properly issue within ten days of the judgment. The Court below decided that the Act of 1865 does not apply to proceedings under the Act of 1772. Whether it does so apply is the precise point involved.

The Act of 24th March 1865, Pamph. L. 150, provides that “ in every proceeding or suit brought in the city of Philadelphia, under any of the several acts of this Commonwealth, by landlords to recover possession of property leased for a term of years, or from year to year, in which a certiorari is now allowed, the said certiorari shall be a supersedeas,” &c.

It is necessary to a proper understanding of this act to consider briefly the law as it stood at the time of its passage. The Act of 1772 makes no mention of a certiorari. Such writ is not allowed by its terms. Yet it has been repeatedly held that the common law writ of certiorari might issue under said act, but it does not operate as a supersedeas : Grubb v. Fox, 6 Binn. 460. The reason for this is that proceedings under the Act of 1772 are sui generis, the Act of Assembly intending to give landlords a speedy remedy. While the common law right to a certiorari to remove proceedings under this act has never been denied, this court decided at a very early day that such writ did not operate as a supersedeas for the reason above given.

Next in order came the Act of 25th March 1825, Pamph. L. 114, providing for the case of tenants who shall remove from the demised premises without leaving sufficient property on the premises to secure at least three months’ rent, and who shall refuse to deliver up possession, &c. This act contains no provision for a certiorari.

The Act of April 3d 1830, Pamph. L. 187, provides a mode in which a landlord may proceed to obtain possession of the demised premises for non-payment of rent. In said act it is provided “ that nothing herein contained shall prevent the issuing of a certiorari with the usual force and effect.” To say that this proviso does not allow the certiorari in the sense of expressly giving it, is a refinement of criticism. While the phraseology is peculiar, giving it somewhat the form of a negative pregnant, it evidently provides for and allows a writ of certiorari with its usual force and effect.

The Act of December 14th 1863, Pamph. L. 1125, allows an appeal, and also a certiorari to “remove the proceedings of the justices, as in other cases.”

Thus stood the legislation when the Act of 1865 was passed. It is contended that the effect of the latter act is to make the certiorari a supersedeas in every proceeding or suit brought in the city of Philadelphia by a landlord to recover the possession of property leased for a term of years. If this be the proper construction of the Act of 1865, then the Act of 1772 is rendered comparatively useless, and the serious mischiefs against which for over one hundred years it has protected us, have returned to vex the present generation, as they must seriously have disturbed the framers of said act; for its avowed object was to give some proceeding, suigeneris, and unknown to the common law, by means whereof a landlord who had occasion to use or occupy his own house, or to sell or demise the same, might recover possession thereof at the termination of the lease without the delay and expense of an ejectment. If a certiorari is interposed to stay proceedings under this act, its value as a remedial statute is seriously impaired, if not wholly gone.

If the legislature intended by the Act of 1865 to make a certiorari a supersedeas in all landlord and tenant eases, it was very easy to have said so in few and plain words. They have not done so. ' On the contrary, the intent is clear to restrain the operation of the act to certain cases only. Else why the words, “ in which a certiorari is now allowed.” Evidently the legislature had no reference to the common law writ of certiorari when they used this language. Such writ is of right, and may issue of course, but it does not, as has already been said, suspend proceedings in a landlord and tenant case. It was undoubtedly the writ of certiorari allowed by statute that was in the contemplation of the legislature when the Act of 1865 was passed. Such a writ was allowed in both the Acts of 1830 and 1863. Yet in neither of those acts is it said in express terms that the certiorari shall be a supersedeas.

There are reasons why the law should be explicit upon this point. Both of the last-named acts are a wide departure from the course of procedure under the Act of 1772. It will be remembered that in the latter case the cause is heard before two aldermen and a jury of twelve freeholders, to be selected by the sheriff. In no form of summary proceedings known to the law is so much care exercised to guard the rights of the parties, and secure a fair trial as .under the Act of 1772. The provision for a freehold qualification for the jurors was intended, at least, to secure a jury of more than the average grade. If such juries are not composed generally of as good material as they ought to be, it is no fault of the law, but of its officers charged with its execution. In such proceedings the tenant has a fair trial before a jury of his peers, and it is no hardship to him to allow the judgment of such a tribunal upon so simple a question as whether his term is fully ended, to be enforced, notwithstanding a writ of certiorari. So, as to the Act of 1825. It gives the remedy where the tenant has removed from the premises, leaving no goods thereon, refuses to give security for the rent, and yet declines to surrender the possession. A certiorari is clearly not needed in such cases. But in the Acts of 1830 and 1863 the proceedings are entirely without a jury; under that of 1830 before two aldermen, under that of 1863 before a single alderman.

It is not singular, therefore, that, inasmuch as both ’these acts are in derogation of the common-law right of trial by jury, the legislature deemed it essential to place the question at rest whether the writ of certiorari which had been theretofore allowed by said acts should operate as a supersedeas. This we regard as the proper construction of the Act of 1865. To extend it to the Act of 1772, ■*in which a statutory certiorari had never been allowed, would be, in our judgment, to carry the Act of 1865 beyond its manifest intent as well as its express terms. An ingenious argument was made on behalf of both the plaintiff and defendant in error upon the grammatical construction of said last-named act. We are unable to see that the view we have taken of it does any violence to its proper reading. When the legislature intend so radical a change in existing legislation as to make a certiorari a supersedeas to proceedings under the Act of 1772 they will probably say so in express terms, and not leave it to rest upon implication, or the yet more uncertain rule as to which of two antecedents shall govern a verb.

The questions raised by the remaining assignments need not b'e discussed. Most of them refer to matters dehors the record.

The judgment is affirmed.