Van Rensselaer v. Smith.

a conveyance in fee, of manor lands, reserving rents. A statute privity is created, enough to pass a covenant to pay rent to each subsequent assignee of the land conveyed.

The revised statutes authorized an action of ejectment, to recover the possession of demised premises, whenever any half year's rent or more should be in arrear from any tenant to his landlord, and no sufficient distress could be found on the premises to satisfy the rent due, provided the landlord had a subsisting right by law to re-enter for the non-payment of such rent; and the service of such a declaration in such action was to be deemed and stand instead of a demand of the rent in arrear and of a re-entry on the demised premises. (2 R. S. 505, § 30.) This statute only applied to cases where the conventional relation of landlord and tenant existed. That relation has always been assumed by the courts to exist, under and by virtue of the manor grants in fee reserving rents; and I have endeavored to satisfy myself that that assumption was well founded. In 1846 the legislature abolished the remedy by distress for rent, rendering it impossible that there could be any "sufficient distress" on or off the premises. The landlord was deprived of the power to distrain, and the tenant of his power to comply with his agreement to keep "sufficient distress" on the premises to satisfy rent in arrear. But whilst abolishing distress as a remedy, the legislature declared that "whenever the right of re-entry is reserved or given to a grantor or lessor, in any grant or lease, in default of a sufficiency of goods and chattels whereon to distrain for the satisfaction of any rent due, such re-entry may be made at any time after default in the payment of such rent, provided fifteen days' previous notice of such intention to re-enter, in writing, be given by such grantor or lessor, or his heirs or assigns, to the grantee or lessee, his heirs, executors, administrators or assigns, notwithstanding there may be a sufficiency of goods and chattels on the lands granted or demised, for the satisfaction thereof." I do not think the effect of this statute was to repeal the article of the revised statutes, entitled "of the recovery of the pos

Van Rensselaer v. Smith.

The

session of demised premises for non-payment of rent." effect rather was to render inoperative the words in § 30, "and no sufficient distress can be found on the premises," &c. As the law stood prior to 1846, the landlord, for condition broken, might have proceeded at common law, or under the statute, to re-enter and repossess himself of the premises. The tenant covenanted to pay the rent, and further stipulated that if he broke the covenant the grantor might re-enter. He also agreed that a sufficient distress should always be found on the premises to satisfy any rent in arrear. The legislature, in 1846, abolished the remedy by distress for rent; thus practically rendering it unimportant whether sufficient distress could be found on the premises or not. Whilst taking away one of the remedies of the grantor in a case where a right of re-entry was reserved, another was substituted. Before, the grantor might re-enter in case of a failure of the tenant to keep a sufficient distress on the premises to satisfy arrears of rent; but by the statute of 1846 he was authorized to re-enter at any time after default made in the payment of such rent, provided he gave notice in writing to the grantee or lessee, his heirs, executors, administrators or assigns, fifteen days previously, of such intention to re-enter, notwithstanding there might be a sufficiency of goods and chattels on the lands granted or demised, for the satisfaction of rent due. In Van Rensselaer v. Snyder, (3 Kern. 299,) it was held that this was a new remedy provided for the landlord to enforce the collection of the debt due to him, in lieu of that by distress. Whether this be so or not, there is nothing in the act of 1846 expressly repealing the prior statute giving an action of ejectment for the non-payment of rent; nor do the provisions of the former repeal the latter by implication. The case cited was ejectment brought under the statute, after the law of 1846 was enacted, for the non-payment of rent accruing upon an indenture similar, in all respects, with those under consideration. The idea was not intimated, by court or counsel, that the statute remedy had been affected; but it was held that VOL. XXVII.

12

Richardson v. Mead.

the law of 1846 was valid, the notice of intention to re-enter (like those in the present cases) sufficient, and the plaintiff (the devisee of the grantor in the indenture) entitled to recover.

The judgments of the circuit court in the cases of Van Rensselaer v. Ball, and Van Rensselaer v. Hays, should be affirmed. The judgments of the special term in the cases of Van Rensselaer v. Smith, and Christie et al, assignees, &c. v. De Friest, should also be affirmed.

HARRIS, J., concurred.

Judgment accordingly.

[ALBANY GENERAL TERM, May 3, 1858. Gould, Justices.]

W. B. Wright, Harris and

RICHARDSON VS. MEAD.

It is not necessary for the assignee of a thing in action, or contract, to prove that he paid, or agreed to pay, a consideration for it, to entitle him to maintain an action thereon, in his own name, if he shows that he holds it, and is the real party in interest.

A gratuitous assignment, if good on its face, is sufficient; for it passes the title, as between the parties..

An assignment of an account, for work and labor, indorsed on the back thereof, by which the owner sells and transfers the same to another, is valid, although no consideration is expressed. And the assignee may recover thereon, in his own name, without proving the payment of any consideration.

THIS

HIS action was brought in a court held by a justice of the peace, where the plaintiff recovered a judgment against the defendant for $35.38 damages, besides costs. The cause of action was a claim in favor of Philo Wetherby against the defendant, for work of the former, which he had performed for the defendant and which claim the plaintiff alleged Wetherby had assigned to him. The claim, as presented to the justice, was in the form of an account; and on the back thereof was

Richardson v. Mead.

an assignment of it to the plaintiff in these words and figures, to wit: "Oct. 13, 1856. This day, at 8 o'clock in the morning, I sell and transfer this account to William Richardson against David Mead. (Signed) PHILO WETHERBY.

Witness, Austin Richardson."

The defendant objected to the sufficiency of the assignment of the claim for the work, on the ground that there was no consideration expressed in it. The justice overruled the objection; and upon the evidence in the case showing that Wetherby performed the work for the defendant, mentioned in the account, rendered the above mentioned judgment. Philo Wetherby was examined, as a witness for the plaintiff, to prove that he did the work specified in the account, and to establish the price that the defendant agreed to pay him therefor. But he was not questioned as to whether there was any consideration for the assignment of the account by him to the plaintiff. Whether the plaintiff had title to the claim in dispute, so that he could recover on it, was the only material question for the consideration of the court, in the case. The Otsego county court held that the assignment of the account, by Wetherby to the plaintiff, was void, for the reason that it was without consideration; and reversed the judgment of the justice. The plaintiff appealed from the judgment of the county court to this court.

L. L. Bundy, for the plaintiff.

R. M. Townsend, for the defendant.

By the Court, BALCOM, J. If the defendant had paid to the plaintiff the claim for Wetherby's work, without suit, the latter could not have recovered it again, of the defendant, upon proof that the assignment of it to the plaintiff was without consideration. The assignment establishes the fact that Wetherby desired the defendant should pay the plaintiff for the work; and if he had paid the claim therefor, the law would declare that he had done so at Wetherby's request.

Richardson v. Mead.

There can be no doubt, if Wetherby had only promised the plaintiff that he would transfer the claim to him, that the plaintiff would have been obliged to aver and prove a consideration for the promise, in order to recover, in an action against Wetherby, for a refusal to transfer it. (See Barnes v. Perine, 15 Barb. 249.) But the transfer of the claim was executed. Wetherby had done all that he had agreed to do with it; and the plaintiff was in possession of a statement of it, and of evidence that he received it lawfully. And where a contract has been executed, it is not always necessary for a party, who claims the benefit of it, to show that there was a consideration for it. (Robertson v. Gardner, 11 Pick. 146.)

It is never necessary for the assignee of a thing in action or contract to prove that he paid or agreed to pay a consideration for it, to entitle him to maintain an action thereon, in his own name, if he shows that he holds it, and is the real party in interest. (Code, § 111.) A gratuitous assignment, if good on its face, is sufficient; for it passes the title, as between the parties. (Arthur v. Brooks, 14 Barb. 533.)

Now the real question in this case is whether it was necessary for the plaintiff to prove that he paid a consideration for the claim, for Wetherby's work. He clearly might have done this, if there was any consideration for the assignment, notwithstanding its language. (Barnes v. Perine, supra.) The assignment states that Wetherby sold and transferred the claim to the plaintiff, at 8 o'clock in the morning of the 13th day of October, 1856; and I think we should not presume that he gave the claim to the plaintiff, or that the assignment was without consideration; but rather that Wetherby sold it to the plaintiff for a valuable consideration, paid or agreed to be paid therefor. (See 2 Cowen's Tr. 47, 2d ed.)

I am of the opinion the assignment of the claim by Wetherby to the plaintiff, in the form it was, established the fact that the plaintiff owned the claim; and that he was entitled to recover.