PETERSON v. HAIGHT, 1 Miles 250

The opinion of the Court was delivered by Stroud, J. The plaintiff in this replevin relies on the familiar rule of pleading, that a demurrer admits all such matters of fact as are sufficiently pleaded. What then are the facts contained in his plea?

Taking them most favourably for him, they amount to this: that on the 3d of June 1823, a lease of the premises for six years, at a specified rent, was made by Haight to Brake; that it was then agreed by them, and so set forth in the lease, that if Brake should make certain improvements in the house, which was the principal subject of the demise, a proportion of the expense, not to exceed a named sum, should be borne and paid for by Haight; that at the end of the term, in case the contemplated improvements were made by Brake, and instead of restoring the property to its original condition (which might be done according to the agreement) these improvements should be left by Drake for the benefit of Haight, a valuation should be fixed upon them, and with the allowance of a specified deduction, Haight was to pay the amount of this valuation; that not long after the commencement of this lien, Drake assigned his term to Jackson ; that before its expiration, Jackson obtained from Haight a renewal of the lease foran other six years on the same terms as the original lease from Haight to Drake; that after the commencement of the second term, Jackson assigned it to an individual who afterwards assigned it to the plaintiff; that this term expired whilst the plaintiff was in possession ; that Brake during his lease made the contemplated improvements in the demised property; that these improvements were suffered to remain with the property at the end of the second term; that the plaintiff offered to have them valued, but Haight refused his concurrence ; that this value, according to the plaintiff’s estimate, is 300 dollars, which exceeds the amount of rent due and distrained for; and lastly, that Haight has made sale of these improvements, and thus converted them to his own use since the expiration of the second lease.

Assuming the correctness of this statement of facts, and conceding, for the sake of the argument, that an equitable defence in the nature of a counter demand arising out of the same transaction is allowable in this action, on the authority of Steigelman v. Jeffries, 1 Serg. & Rawle 477; Heck v. Shener, 4 Serg. & Rawle 249; Bayne v. Gaylord, 3 Watts’s Rep. 301; or that even a set-off might be pleaded, a point never yet decided, but upon which Chief Justice Tilghman, in Anderson v.

Reynolds, 14 Serg. & Rawle 439, has taken the trouble to intimate that he had formed an opinion on one side or the other; yet the plaintiff has failed in exhibiting a defence of either description. The lease of Drake expired on the 2d of June 1829, and the renewal for another six years, by the agreement between Haight and Jackson on the same terms as the former lease, could mean nothing more than that other improvements might be made under their second lease, for which Haight would incur a responsibility correspondent in effect with what he had assumed under the first lease.

But no such improvements are alleged to have been made; but the claim, the equitable defence, the set-off, or whatever other appellation may be given to it, is for improvements made by Drake, and under the lease to him, the right to avail himself of which, on no principle that we are acquainted with, could, without the consent of Haight, be transmitted to the plaintiff, a third assignee of the second term. Judgment for the avowant.