Funt, Morris F.

English

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Volume 40 Issue 4 Article 13 June 1934 Landlord and Tenant--Nature of Hold-Over Tenancy--Right of Distress as Against Intervening Chattel Mortgage Morris F. Funt West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Property Law and Real Estate Commons Recommended Citation Morris F. Funt, Landlord and Tenant--Nature of Hold-Over Tenancy--Right of Distress as Against Intervening Chattel Mortgage, 40 W. Va. L. Rev. (1934). Available at: https://researchrepository.wvu.edu/wvlr/vol40/iss4/13 This Recent Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. RECENT CASE COMMENTScounter to the fundamental necessity of contractual "privity",the third party beneficiary doctrine also raised a new kind ofaffirmative duty." Likewise, an agent has been held subject totort liability for his failure to act affirmatively in relation to prop-erty under his control which may become dangerous to third per-sons.' Even in maritime law, there appears to be an affirmativeduty on the part of a ship-owner to make all reasonable efforts torescue sailors who have fallen'overboard."The result of the immediate case, seeks to give sanction toBentham's ideal that, -"Every man is bound to assist those who have need ofassistance, if he can do it without exposing himself to sensibleinconvenience. This obligation is stronger in proportion asthe danger is greater for the one and the trouble of preservinghim, the less for the other' ".-JULIUS COEN.LANDLORD AND TENANT - NATURE OF HOLD-0VER TENANCY- RIGHT OF DISTRESS AS AGAINST INTERVENING CHATTEL MORT-GAGE. - T during term of lease executed chattel mortgage, whichwas duly recorded, to secure a loan. At expiration of lease, T heldover under terms of original lease and without executing a newwritten one. All the rent before the original lease was paid beforethe expiration thereof. Landlord brings action for rent accruingduring hold-over term and claims priority over chattel mortgage.Held: Holding over created new tenancy under Code' and hence"Corbin, Contracts for the Benefit of Third Persons (1918) 27 YALE L. J.1008; also (1922) 31 Y.E L. J. 489."Seavey, The Liability of an Agent in Tort (1916) 1 So. L. Q. 16, 26.1BoHLEN, STUDimS iN THE LAw Op TORTS, p. 312. See also The G. W. Glenn,4 F. Supp. 727 (1933) interpreting this liability under the Merchant's MarinoAct § 33 (46 USCA) § 688.11 BENTHA-f, COMPLETE WoRxs (1859) 164. See. also Ames, Law andMorals (1908) 22 HAnv. L. REv. (1908).1 W. VA. REv. CODE (1931) c. 37, art. 6, § 5. It is submitted that thissection of the code has nothing to do with the creation of estates and dealsonly with their termination. It reads as follows: "A tenancy from year toyear may be terminated by either party giving notice in writing to the other,at least three months prior to the end of any year, of his intention to term-inate the same." The rest of the section deals with notice to terminate andthe requisite formalities.It is further submitted that the case of Allen v. Bartlett, 20 W. Va. 46, 19A. L. R. 10, 46 n. (1882) which is cited in the annotated code as construingthis section did not do so in the manner stated by the court in the principalcase or in the annotated code. The only mention of this section of the code1Funt: Landlord and Tenant--Nature of Hold-Over Tenancy--Right of DistreDisseminated by The Research Repository @ WVU, 1934WEST VIRGINIA LAW QUARTERLYlien under trust deed, created and recorded during term of originallease was superior under West Virginia Code of 1931. People'sTrust Company v. Oates.2In Virginia, where the statute is simlar in all respects to thatof West Virginia, all liens by mortgage or otherwise created afterthe commencement of any tenancy are subject to a landlord's lienfor rent. The termination or surrender of a lease, and the givingof a new lease after a chattel mortgage has been given, sub-ordinates any lien or claims for rent which the landlord may haveunder the new lease to the lien of the mortgage, if the latter hasbeen properly recorded,' as was done in the principal case.'Under no circumstance where the chattel mortgage is dulyrecorded prior to beginning of lease, or before the chattels arebrought on to the premises, may the landlord claim more than thetenant's interest in them. Moreover, where a tenant holds overafter the expiration of his lease, and the lessor receives rent ac-cruing subsequently to the expiration of the term, or does any actin Allen v. Bartlett is on page 54 and is as follows: "To terminate a ten-ancy from year to year requires a notice in writing from the party wishingto terminate it to the other party for three months prior to the end of anyyear." The writer has been unable to find any case in West Virginia con-struing this section of the code as cited by the court in the principal case.2W. VA. REv. CODE (1931) c. 37, art. 6, § 13. Property subject to distress."The distress may be levied .... If any lien be created thereon whilethey are upon the leased premises, they shall be liable to distress, but for notmore than one year's rent, whether it shall have accrued before or after thecreation of the lien." "No goods shall be liable to distress other than such asare declared to be so liable in this section." This statutory language was con-strued in Hawley v. Levey, 99 W. Va. 335, 128 S. E. 735 (1925) c. 37, art. 6,§ 18: "If, after the commencement of any tenancy, a lien be obtained orcreated by trust deed, mortgage, or otherwise, upon the interest or propertyin goods on premises leased or rented, of any person liable for the rent, theparty having such lien may remove (with certain conditions).8People's Trust Co. v. Oates, 68 F. (2d) 353 (1934).'2 UNDERHILL, LANDLORD AND TENANT, 1436 (1909); Upper Appomatox Co.v. Hamilton, (leading case) 83 Va. 319, 2 S. E. 195 (1887); Wades v. Fig-gatt, 75 Va. 575, (1881); City of Richmond v. Dueseberry, (accord withprincipal case) 27 Gratt. (Va.) 210 (1876); so, also, in Iowa, 2 TIFFANY,LANDLORD AND TENANT, 1935 (1910); Gassnick v. Steffensen, 112 Iowa 688,84 N. W. 945 (1901); Lyons v. Deppen, 90 Ky. 305, 14 S. W. 279 (1890);Thorpe Bros. v. Fowler, 57 Iowa 541, 11 N. W. 3 (1881); the case of Rol-lins v. Proctor, 56 Iowa 326, 9 N. W. 235 (1881) which is often cited by theauthorities as being contra to the doctrine of the principle case, is clearlydistinguishable on its facts. There the second lease and lien claimed underit was for the balance of the original term, and the court stated that themortgagee executed the mortgage in contemplation of the landlord's lienfor that period. The court stated "There can be no question that when themortgage was executed, it was accepted by the intervenor (mortgagee) subjectto the right of the plaintiff (landlord) to enforce a landlord's lien for therent accruing during this term."5At p. 354.OW. VA. REV. CODE (1931) c. 37, art. 6, § 13, supra n. 2.2West Virginia Law Review, Vol. 40, Iss. 4 [1934], Art. 13https://researchrepository.wvu.edu/wvlr/vol40/iss4/13RECENT CASE COMMENTSfrom which it may be inferred that he intends to recognize himstill as such tenant, he becomes thereby tenant from year to year,upon the conditions of the original lease. Where moreover, thelessor does not act recognizing the continuing tenacy, the tennantholding over is but a tenant at sufferance.'It is submitted that the chattel mortgagee should have prior-ity over a lease subsequently created by holding over, unless thelandlord can show that the mortgagee lent the money in contempla-tion not only of the then existing lease but also of a probable hold-over tenancy.8-MORRIS S. FUNT.M=us AND {INERALS - CONVEYANCING OF COAL B1Y SALE OlLEASE. - The Commissioner of Internal Revenue sought to collecttaxes on annual minimum royalty payments made by the taxpayerunder a certain coal lease. The lease was simply whether the pay-ments made by the taxpayer, the "lessee", were on capital accountor were ordinary business expenses. Both parties petitioned theCircuit Court of Appeals to review the orders of the Board of TaxAppeals. 24 B. T. A. 554. The lease here considered was for a termof forty years, and provided for royalties at a certain rate per ton.Royalty was to be paid on a minimum tonnage of 250,000 tonsper year, whether or not that amount were mined. It was to con-tinue in force until all coal had been removed, if the initial termof forty years expired before the depletion of the mine. If theminimum production were not mined for any year, the differencebetween that and the quantity mined would be applied in anysubsequent year, when actual production exceeded the minimumtonnage required. During two years of the lease, the taxpayer7Emerick v. Tavenner, 9 Gratt. (Va.) 220 (1852).8 The citation in the principal case purporting to come from Allen v.Bartlett, 20 W. Va. 46 (1882) is in reality taken from Emerick v. Tavenner,supra n. 5 at 236. The writer believes that there are two leases involved inevery hold-over tenancy. In the first place, there has been a preceding termfor years, - a definite type of estate in land at common law. Secondly,upon the termination of the original, there arises either a tenancy by thesufferance, or one from year to year. Either of these two latter types is adifferent estate in real property from the lease for years. Thus, there are infact, two separate and distinct leases. It is simply as if two successiveterms for years had been given; each would be a distinct common law es-tate. A running lease, from year to year, (or any other period), on the otherhand, would be one continuous tenancy throughout its duration, and not aseries of terms, one following on the heels of its predecessor.3Funt: Landlord and Tenant--Nature of Hold-Over Tenancy--Right of DistreDisseminated by The Research Repository @ WVU, 1934

Landlord and Tenant--Nature of Hold-Over Tenancy--Right of Distress as Against Intervening Chattel Mortgage

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Landlord and Tenant--Nature of Hold-Over Tenancy--Right of Distress as Against Intervening Chattel Mortgage

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