Opinion
Argued March 7, 1881
Decided March 15, 1881
Hamilton Wallis for appellant.
Nathaniel C. Moak for respondent.
The plaintiff's claim rests upon the title acquired from Moses H. Bean, who had leased certain real estate, to wit, a hotel situate in Jersey City, of the defendant's intestate, and was the owner of the furniture therein, for the value of which a recovery was had in this action. Moses H. Bean leased the real estate for the unexpired term to one Ely, and also executed to him a lease thereof and an agreement in regard to the personal property, which gave him a right to use and to purchase it upon certain terms stated. If Ely performed all the conditions of the agreement at the end of the term, Bean also agreed to sell him the furniture, and if not, he, Bean, was authorized to repossess himself of the same. An assignment or instrument made on the 27th day of November, 1860, transferred the interest of Moses H. Bean to the plaintiff, in consideration of certain notes of Ely, which had been passed to the plaintiff, and was made more specific by a bill of sale of May 8, 1862, by which the interest of Moses H. Bean in the furniture was passed to the plaintiff. The rights of the parties must be considered, having in view the agreement with Ely and the transfers referred to, which were made to the plaintiff. The effect of the transfers was, I think, to vest in the plaintiff a title to the furniture, and upon a default being made by Ely, plaintiff had a right to take possession of the same. ( Cole v. Mann, 62 N.Y. 1.) Nor does the provision of the agreement in regard to a re-entry and a sale, and the application of the proceeds to the payment of the notes and rents, transfer such a title to Ely as renders the property subject to Edge's claim for rents due and to become due, and it does not, we think, vest an interest in Edge for his benefit within the principles decided in Lawrence v. Fox ( 20 N.Y. 268), Garnsey v. Rogers (47 id. 233), Simson v. Brown (68 id. 355). The transaction as to the furniture was in effect a conditional sale of the same, and the title was not to pass until full payment therefor by Ely, and hence Edge had no right to insist upon payment of the rent due from the proceeds of the sale of the furniture. The original claim of plaintiff was acquired in November, 1862, and there was no rent distrained for by Edge, except what was said to be due in February, 1862. If this, as the defendant insists, includes some of the rent due on the first day of November, 1861, there were no arrears of rent until nearly a year after the original transfer to the plaintiff, and nearly six months after the bill of sale of the furniture of May 8, 1862. The title had certainly passed at the latter date, and the defendant's intestate had no claim for rent prior to the acquisition of an absolute title by the plaintiff, unless it can be upheld under the laws of New Jersey.
The statute of that State (Dixon's Digest of Laws, N.J. [4th ed.] p. 241, § 8) authorizes a landlord "to take and seize, as a distress for arrears for rent, any of the goods and chattels of his, her or their tenant or tenants, and not of any person or persons, although in possession of such tenant or tenants, which may be found on the demised premises," and also provides that "such distress must be made within six months after the same shall become due; or when the rent is payable by installments, then within six months after the rent becomes due." The statute cited is very explicit as to the rights of persons owning property in possession of the tenant, and fully protects them from seizure for rent, and the decisions of the courts of that State are in accord with its obvious meaning. ( Woodside v. Adams, 40 N.J. Law, 417; Allen v. Agnew, 24 id. 443; Hamilton v. Hamilton, 25 id. 544.) The case of Hoskins v. Paul (4 Halst. 110) is relied upon as in conflict with the cases cited. Assuming that such is the fact, it is a sufficient answer to this position to say that the weight of authority is entirely adverse to the latter case and should control.
The claim of the defendant's counsel that the statute of New Jersey gives the landlord six months after the rent becomes due in which to make distraint, provided the property remains upon the demised premises, and, therefore, the rent in arrears on November 1, 1861, could be distrained for, upon any property then on the premises, is not well founded. The statute only limits the time, but does not in any form render property which has been sold before the warrant of distress has been issued liable to levy and sale.
The claim that the transaction was a scheme to defraud Edge presents a question of fact which is not reviewable upon this appeal.
There was no error in any of the rulings as to the admission of evidence, and there is no other question in the case which demands especial consideration.
The judgment was right and should be affirmed.
All concur, except RAPALLO, J., absent.
Judgment affirmed.