Becker v. Werner

Mr. Justice Paxson

delivered the opinion of the court,

This case at first sight would seem to require a great deal of winnowing to separate the wheat from the chaff. A close examination of it, however, leads us to the conclusion that the real matter of controversy lies in a very narrow compass.

The learned judge of the court below charged the jury (see 4th assignment), that “ Mr. Torrence might, at the time he issued his landlord’s warrant in July, 1879, have included all the arrears of taxes at that time, but he did not; he issued his landlord's warrant simply for the rent due, leaving the taxes unpaid ; he could not then forfeit the lease simply because there were arrears of taxes unpaid. I don’t remember that there was a particle of evidence in this case to the effect that Mr. Patterson or any person ever notified Mr. Becker that they would forfeit the lease.” The learned judge further instructed the jury (see 3rd assignment): “I say to attempt to forfeit the lease of Becker without notice to him, and under such circumstances, was a manifest and palpable absurdity.”

The clause of forfeiture in the lease contains the following language: “And in case of violating these 'covenants or any of them, or of transferring this lease without the written sanction of said lessors, said lessee and his assigns shall -forfeit said lease and improvements, and the lessors may, either with or without any writ, or legal process, at their option, re-enter and hold said premises and the improvements, buildings, &e., from which time all claims by defaulting lessee shall wholly cease.”

At the time of the forfeiture there were three distinct breaches of covenant on the part of the lessee. 1. The rent was in arrear; 2. The taxes were unpaid; and, ¿j. The lessee liad mortgaged his leasehold, which in law was equivalent to an assignment of it. Each of these breaches was a ground of forfeiture. When the distress was made for the rent the overdue taxes were not included in the landlord’s warrant., as they might have been, under the terms of the lease. Including the taxes in the warrant was optional, and their omission by the landlord deprived him of no right. If, at the time the-rent fell due, there were other breaches of covenant, he had the right to collect his rent by distress, and at the same time proceed to forfeit the lease for such breaches; otherwise he might lose his rent by reason of the forfeiture. This view renders it unnecessary to discuss the question how far the forfeiture could have been sustained under the circumstances had the non-payment of the rent been the only breach of covenant by the leasee.

It was contended, however, that the forfeiture was without notice to Mr. Becker, the lessee, and was otherwise irregular and of no effect.

Mr. Patterson says, in his testimony: “ I went over on the premises. Mr. Torrance had told me that the rent was not paid, and directed me to forfeit it. I drew up a notice in writing and went over on to the premises, and took possession of the leasehold, served notice on the sub-tenants then in the houses, notified them that the estate took posession of the property, and notified Mr. Becker.”

It will thus be seen that Mr. Becker had notice. We need not speculate how far the proceedings were invalid as to him had he objected to them. But he has never made such objection, and is not now in court denying the regularity of the proceedings. The objection comes from a party who is a stranger to the transaction, and who has no equity to be heard. The mortgage upon the leasehold through which he claims title fell with the forfeiture. The creation of the mortgage was prohibited in substance by the lease, and was a ground of forfeiture. The lessee, having no right to assign his lease, could not do so indirectly by mortgaging it. As against the landlord the mortgage was a nullity, and it cannot be successfully set up as against the title acquired through the forfeiture and constable’s sale. That title is now in Louis Schafer as trustee for Mrs. Becker, who furnished the money out of her separate estate to pay the bid at the constable’s sale. The original lease was to Frederick Becker, her husband. It is not pretended that she had any interest in this lease, and she certainly was not a party to it. It is true she joined in the mortgage of the lease, but that was merely through the ignorance or carelessness of the scrivener. The mortgage covered other property which admittedly belongs to Mrs. Becker, and her joining in the mortgage of the leasehold of her husband was simply, a blunder. " It furnishes no just ground of estoppel in this proceeding.

The judgment is reversed, and it is now ordered that judgment be entered in favor of the defendants below upon the question of law reserved. '