Binns against Hudson

Binns against Hudson. Philadelphia, Saturday, April 10. S00CJS of a tenant taken m execution upon premises, payment of rent tbe landlord, they are taken, ‘n the middle of a <]uarter> but not uptothetimeof sale. tenant agrees to pay a certain rent. ¿^tions foi^" es which he oovenants to pay, the landlord cannot claim a preference for the taxes due and unpaid, but only for the rent. IN a case which was submitted for the opinion of _ . , , , , r , r , . Court, it was stated, that the defendant, on the first of September 1811, leased of James L. Fisher, for five years, brewery and the appurtenances, at an annual rent of 1200 dollars, payable quarterly, without any deduction on count of rent charges or taxes, which the lessee covenanted to pay himself, together with the taxes upon a lot not eluded in the lease. On the 25th of July 1812, an execution was issued by the plaintiff, which was levied the same day , , , , . . . f upon sundry goods and chattels on the premises, at which time part of a quarter had expired, and some of the taxes m ™ , ,. , , , •, , were unpaid. The sale did not take place until a subsequent day; and the money having been brought into Court, ^le questions to be decided were, 1. Whether the rent should be apportioned, and paid to "the time the goods were taken in execution, or up 10 the day of sale. 2. Whether the taxes should be included in the demand for rent. Randall for the plaintiff. Wheeler for the landlord. [MAJORITY — Tilghman C. J.] Tilghman C. J. By the act of the 21st of March 1772, ■ the goods are liable “ for the sum of money which was due “ for rent at the time they were taken by virtue of the exe- “ cution.” Were the construction of the act to be now given for the first time, I should incline to the opinion that the landlord could claim no rent which was not actually due at the time of the levy. But it has been determined, that the growing rent may be apportioned, so that the landlord shall have it, down to the time when the goods are taken by the sheriff. Such was the decision of this Court in the case of West’s administrators v. Zint, March term 1798. I have seen the manuscript notes of Judges Teates and Smith, and the Court said that “ such had been the construction uniformly 'Uput on the act” I am not for disturbing a long settled construction; but as the Court have certainly been sufficiently liberal to the landlord, we should stop at the line which they have drawn; that is to say, the rent is to be calculated to the time when the goods are taken, and not to the time when they are sold by the sheriff. The rent might have been reserved in such a manner as to cover the taxes, but it has not been done so’in this lease. The rent reserved is 1200 dollars, payable quarterly, without any deduction on account of taxes, and the tenant covenants to pay all taxes, so that the taxes are no part of the rent reserved. Indeed the covenant extends to the payment of taxes on some land^noi included in this lease. The landlord therefore, cannot be permitted to charge the goods taken in execution, with any part of the sum due for taxes. Brackenridge J. concurred. Money to be taken out accordingly.