Opinion
No. 4441.
Argued November 2, 1955.
Decided December 6, 1955.
A lessee required by the lease to pay rent on the first day of each month in advance during the term of the lease becomes obligated thereto when that day arrives, and the owner of the property or the person having the status of landlord at that time is entitled to the rent.
A deed of real estate subject to a lease conveying "any and all rights which [the seller] may have in and to a leasehold" does not entitle the purchaser to rent already accrued to the seller nor is the rent apportionable in respect of time between the seller and purchaser in the absence of assignment or other provision therefor.
When real estate subject to a lease is sold the grantee is not entitled to maintain statutory proceedings to oust the tenant for nonpayment of rent which accrued before the sale unless he has been granted the right of collection.
The fact that the seller declined to accept payment of such accrued rent from the tenant after the sale did not as a matter of law establish the purchaser's right thereto in the absence of any definite arrangement with respect to payment.
An exception to the denial of a motion to set aside a verdict as against the weight of the evidence presents the limited question of whether the Court was misled or failed to reasonably consider the evidence.
An exception to the verdict as against the law and the evidence raises no question of law not previously saved by exception.
POSSESSORY ACTION, under the Landlord and Tenant Act (R. L, c. 413) to recover certain premises in Nashua. Brought originally in the municipal court of Nashua, the action was later transferred to the Superior Court upon the filing by the defendant of a plea of title (R. L., c. 413, ss. 17, 18) based upon a written lease. The plaintiff admitted the lease but claimed a breach thereof by nonpayment of rent. The Court (Leahy, J.), after hearing, returned a verdict for the defendant. No findings of fact were requested by either party nor were any made.
The plaintiff moved that the verdict be set aside as against the evidence, against the law and against the weight of the evidence. His exception to the denial of this motion was transferred by the Presiding Justice.
On May 1, 1951, Henri L. Ledoux, the then owner of the premises in question, leased them to the defendant "for a period of three years and with the privilege of renewal of lease for three more years." The rent was fixed at sixty dollars per month "to be paid the first day of each month in advance." On January 4, 1954, Ledoux conveyed the premises to the plaintiff, also assigning and conveying to him by the deed "any and all rights which he may have in and to a leasehold of the premises . . . arising out of a purported lease dated May 1, 1951, between the grantor and one Florette I. Laurendeau." In payment of her January 1954 rent, the defendant sent to Ledoux her check dated January 2, 1954 in the sum of sixty dollars payable to his order and marked "Jan. rent." The check was returned to the defendant by Ledoux. The rent for February 1954 and all subsequent months has been paid in advance by the defendant to the plaintiff on the first day of each month. Other facts appear in the opinion.
Albert Terrien and Karl E. Dowd (Mr. Dowd orally), for the plaintiff.
Clancy O'Neill (Mr. Clancy orally), for the defendant.
The breach of the lease on account of which the plaintiff seeks possession of the premises is the nonpayment of the January 1954 rent. His claim turns upon the question of whether all or any part of that rent is due and owing to him. When real estate subject to a lease is transferred by the lessor, his grantee is not entitled to maintain statutory proceedings to oust the tenant for nonpayment except on account of rents as to which he has the right of collection. 32 Am. Jur., Landlord and Tenant, s. 1018, p. 853.
In returning a verdict for the defendant, the Trial Court presumably found that the plaintiff had not established a right to any part of the January 1954 rent. See Lincoln v. Langley, 99 N.H. 158, 159. The plaintiff's exception to the denial of his motion that the verdict be set aside "as against the weight of the evidence" presents the limited question of whether the Court in so finding was misled or failed to consider reasonably the evidence. Condiles v. Waumbec Mills, 95 N.H. 127, 128; Bennett v. Larose, 82 N.H. 443, 447, 448. The exception based upon the claim that the verdict was "against the law" and "against the evidence" raises no question of law "because none was previously saved." Condiles v. Waumbec Mills, supra, 128; Stabrow v. Stabrow, 96 N.H. 74.
A tenant who has agreed to pay rent on certain specified dates during the term of a lease becomes obligated thereto when the day of each such payment arrives. See Quinn v. Madigan, 65 N.H. 8. The owner of the property, or the person having the status of landlord, on the date the rent becomes due, is the one entitled to the rent. Russell v. Fabyan, 28 N.H. 543; 52 C.J.S., Landlord and Tenant, ss. 512, 516, pp. 318, 320. He is the person to whom the tenant becomes obligated. The subsequent transfer of the real estate subject to the lease does not carry with it any right to accrued rents then unpaid. Shell Petroleum Co. v. Jackson, 77 F.2d 340. These belong to the person who was the landlord at the time of their accrual and not to the grantee, unless assigned to him. Burden v. Thayer, 3 Met. (Mass.) 76, 79, 80; 52 C.J.S., Landlord and Tenant, s. 518, p. 321; 32 Am. Jur., Landlord and Tenant, s. 442, p. 360; see Smith v. Wetherell, 89 N.H. 106. Nor is the rent apportionable in respect of time between the grantor and grantee when the transfer occurs during the rent period, unless by agreement. Cashman v. Dumaine, 85 N.H. 467, 468. It belongs to the one owning the reversion on the date the rent becomes due, whether payable at the beginning or the end of the period. Anno. 126 A.L.R. 12, 43, 51.
Under the terms of her lease, the defendant was obligated to pay the rent for January 1954 on the first day of that month. On that date she became indebted to Ledoux, the then owner of the premises, for that month's rent. Ledoux' deed to the plaintiff dated January 4, 1954, contained no assignment of the past due January rent but merely conveyed "any and all rights which he may have in and to a leasehold" of the premises in question. See anno. 44 A.L.R. 1275. By it the plaintiff acquired neither the right to collect the full amount of this rent nor that part proportioned to his ownership during January.
The plaintiff suggests that Ledoux' action in returning the defendant's check in payment of the January rent and informing her orally that "he wouldn't have anything to do with the check and Mr. Velishka is the owner" clearly established his right to the January rent. Ledoux, however, did not endorse the check or forward it to Velishka as he might have done if it was his intention that the January rent be assigned to him, but returned it unendorsed to the defendant. The fact that no claim has since been made by Ledoux is not determinative. He is not a party to this action nor did he testify during the trial. No written direction payment of the January rent nor assurance that he would make no claim for it has ever been given to the defendant by Ledoux.
The evidence in support of the plaintiff's claim that an assignment of the January rent was made to him was not of such a preponderance "that everyone must find in his favor" (Stabrow v. Stabrow, 96 N.H. 74, 75) nor is there any clear or definite indication that the Court acted improperly in considering the evidence or was in any way misled.
Judgment for the defendant.
All concurred.