The case of Chapman v. McGrew, 20 111. 101, announces a contrary doctrine. In that case this question was presented, and notwithstanding the lessee had fully recognized the assignee of the lease as his landlord, it was held that the lessor of the premises might maintain an action to recover the rent. In that case, the fact that the lessee had attorned to the assignee, was given no weight, and the fact that such privity was thereby created as authorized the assignee of the lease to sue for, and recover the rent, was overlooked. In that, the decision was wrong. The right of action could not be in both the lessor and his assignee, and the privity thus created gave it to the latter.
The subsequent case of Dixon v. Buell, 21 111. 203, only holds that such an assignee, whether he holds the legal or equitable title to the lease, may have a claim for rent growing out of the lease, probated and allowed against the estate of the lessee. That case has no bearing on the case at bar.
5. Rights and Duties of Landlord and Tenant Independent of Covenants
(1.) May Protect Reversion, But Has no Action for an invasion of the
23 Pickering, 104. - 1839.
Wilde, J., delivered the opinion of the court. - It was testified by one of the witnesses, that the tenements, for the entering of which the defendant is charged as a trespasser, were, at the time, occupied by under-tenants; and the fact we understand is admitted; and if so, it seems quite clear, that this action cannot be maintained. To maintain an action of trespass quare clausum for an injury done to real property, the plaintiff must prove, that he has the actual possession of the property; for, though the freehold of the land may be in him, he cannot maintain the action, if the land, at the time of the trespass, was in the lawful possession of another. It is not denied that this is the general rule, but it has been argued, that when land is in the possession of a tenant at will, the rule is not applicable, as the possession of a tenant at will is the possession of his landlord; and the case of Starr v. Jackson, 11 Mass. R. 519, is relied on in support of this position. But it is very clear, that the decision in that case is no authority in support of the present action. It was decided in that case, that trespass quare clausum fregit lies for the owner of land in the possession of his tenant at will, where the injury affects the permanent value of the property, as the cutting down of trees, destruction of buildings, and like acts. There can be no doubt, that for such an injury the owner of the land would be entitled to a remedy; the perplexing doubt in that case, was as to the form of the action, whether it should be trespass or trespass on the case. In the case under consideration, no such question can be raised; for upon the facts argued no injury has been done to the freehold, and the plaintiff is not entitled to an action in any form. All that appears by the statement of facts, is, that the defendant had been on the premises at sundry times, exercising act of ownership, such as demanding rent and letting some of the tenements to the tenants in possession. It does not even appear, that the entry was tortious, so that the tenants could support an action of trespass. But however this may be, no actual damage was done to any one; and, most certainly, the plaintiff cannot maintain an action for the mere disturbance of the possession. In the case of Little v. Palister, 3 Greenleaf, 6, the defendant entered upon land in the possession of a tenant at will, and threw down a fence erected by the tenant for his own convenience; and it was held, that the landlord could not maintain trespass, or any other action, for the wrong, the injury being wholly to the rights of the tenant. We think the decision in that case is unquestionably correct, and, consequently, that this action cannot be maintained.
I think it proper to add, to prevent misapprehension, that it must not be inferred, that the judgment of the court would be different, if this case had been in all respects similar to that of Starr v. Jackson. Since the decision of that case, the law in respect to the rights of tenants at will has been materially changed. By the Revised Stat. c. 6o, § 26, it is enacted, " that all estates at will may be determined by either party, by three months' notice in writing, for that purpose, given to the other party." A similar provision was contained in a previous statute.
Since this change of the law regulating the manner of terminating estates at will, the possession of a tenant at will before notice, and for three months after, can in no sense be held to be the possession of the landlord. The tenant has not only the possession, but also the right of possession, and, in this respect, he stands on the same footing as a tenant for a term certain. The landlord's remedy, therefore, for an injury to his freehold, or reversionery interest by a stranger, is by an action on the case and not by an action of trespass quare clausum f regit.
(1.) Has Right to Estovers and Emblements, But Must Not Commit
(2.) Distress for Rent.2
16 Johnson, 159. - 1819.
In error, on certiorari to a Justice's Court.
This was an action of trover, brought in the court below, by the plaintiff in error. The material facts in the case are as follows: On the 1 st of February, 1817, Stewart leased a house in Pearl street,
1 See Part III.- Ed.
2 See also Ingersoll v.Sergeant, supra, p. 86, for further discussion of the sub-ject. Distress has been abolished in most of the States, including New York in the city of New York, to Samuel Satterlee, fur one year, from the 1st of May, 1817; Satterlee then leased part of the house, retaining the front part as a store, to the plaintiff, for the annual rent of $1,000, payable quarterly, for the same term at which he had taken it. On the 1st of February, 1818, Satterlee obtained a new lease of the house for a year from the first day of ensuing May. On the 2d of March 1818, the plaintiff having only paid Satterlee $32 of her rent, he distrained her goods, upon the premises, and sold them at public auction, in due form of law. The defendant was a purchaser of several articles of furniture at this sale, and there had been a demand and refusal of them before suit was brought.