Stuyvesant vs. Davis, 9 Paige Ch. 427

The Chancellor. If there was any equity in the complainant’s bill in other respects, the allegation that there is no sufficient distress on the demised premises to pay the arrears of rent is not sworn to in such a manner as to authorize the issuing of an injunction. This was a fact susceptible of positive proof, by resorting to the ordinary mode of testing it by an actual distress. Again, it was not necessary that there should be sufficient to pay the whole rent due for the five lots.

For as the lots were leased separately, if there was a sufficient distress on either to pay the arrears of rent due on that particular lot, the complainant had no right to re-enter, as to that lot, for nonpayment of the rent due on the lease thereof.

And as he does not state in his bill on which lots the rent remains unpaid, or on which .of them there is no sufficient distress, he clearly was not entitled to an injunction in relation to either of the lots; even if the non-payment of rent and the want of a sufficient distress "was a sufficient ground for granting an injunction the effect of which is to turn the lessee out of possession of his property.

Again ; if the complainant elects to proceed at law to enforce the forfeiture of the lease, for the non-payment of the taxes and assessments, he cannot in the meantime treat the lessee as his tenant and righfully in possession of the premises, so as to obtain an equitable claim to the accruing rents by virtue of his lease. For by bringing an ejectment suit for the forfeiture, he has chosen to treat the lessee and his sub-tenants as trespassers, from that time. The claim to the accruing rents, therefore, is wholly inconsistent with his proceeding at law to enforce the forfeiture.

Indeed, the receipt of any rent which had accrued after the breach of covenant upon which his ejectment suit is founded, would of itself be a waiver of the forfeiture and a good defence to that suit. (Goodright v. Davids, Cowp. Rep. 803. Fox v. Swan, Styles’ Rep. 483.) And it seems, by a recent decision of Mr.

Justice Patterson, that the act of the landlord, in distraining for the rent which accrued previous to the forfeiture, is such an admission of an existing tenancy at the time of such distress, as to prevent a recovery in an ejectment suit upon a demise laid in the declaration previous to that time. (Doe ex dem. David v. Williams, 7 Car. & Payne’s Rep. 322. See also Penant’s case, 3 Coke’s Rep. 64, b. note B.

Thomas & Frazer’s ed.) The landlord may indeed, after his re-entry, recover in an action of debt, or in an action upon the covenants in the lease, for the rent which accrued and became due before the demise laid in the declaration in the ejectment suit. He cannot, however, recover as landlord for any rent due after that time, but must he left to his remedy for mesne profits against the lessee or other person who has held the possession of the premises adversely to his claim.

It does not distinctly appear in this case whether the lease was made absolutely void for the non-payment of taxes and assessments, or whether it was merely voidable. Although by the terms of a lease it is provided that if any of the covenants on the part of the tenant are broken the unexpired term shall cease and determine, if the lease also contains the clause that, in case of the non-performance of such covenants, the landlord may re-enter, as I infer from the statement in the bill was the case here, the lease is voidable only at the election of the landlord, but not void.

And, in that case, this landlord may still waive the forfeiture and proceed for the recovery of the rent, and for the non-payment of the taxes and assessments. (Amsby v. Woodward, 6 Barn, & Cress. 519. Dakin v. Cope, 2 Russ. Rep. 174.) But while the landlord is proceeding in his ejectment suit to enforce the forfeiture, this court will not entertain a bill to give to him a remedy for the recovery of his rent, or his damages for the non-payment of the assessments; which remedy is wholly inconsistent with that proceeding. The injunction in this case ought never to have been granted.

The order of the vice chancellor must therefore be reversed, and the injunction must be dissolved, with costs to be taxed, Ordered accordingly.