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Huerstel v. Lorillard

30 N.Y. Super. Ct. 251 7 Rob. 251 Court N.Y. Super. Ct. Decision date 1867-08-05 English

Contents

Majority

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Francis Huerstel, plaintiff and appellant, vs. Blase Lorillard, Charles T. Hurlburt and Emma C. Lorillard, defendants and respondents.

Headnote

1. The court is not authorized, upon the application of the assignee of a lessor, to appoint a receiver, generally, to collect and hold rents for future adjudication, unless the title to the land forms the subject of litigation, under the first subdivision of section 244 of the Code of Procedure, or the plaintiff shows an appareút right to the rents eo nomine, or an ownership of them as such, or some equity to have them applied so as to prevent injury to him, or protect his rights.
2. There is no implied or equitable pledge of lands by a lessee to the lessor, for rent, either conditionally or unconditionally, which would justify the appointment of a receiver in an action to enforce such imaginary lien. Per Robertson, Ch. J.
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8. Except by virtue of a judgment he may have recovered against the lessee, for rent, an assignee of the lessor has no right by which he can claim to have the fee of the demised premises sequestered to pay rent of them past due, and, still less, that hereafter to accrue. No legal or equitable claim therefor can arise from the accidental union of the ownership of the term for years, and the estate in remainder, in the same person.
4. Nor can any lien be created upon such estate in remainder, either hy the conveyance of a reversionary estate for a term of years, or a covenant of guaranty by the lessor, for the payment of rents arising therefrom.
5. Although the fact that a lessee refuses to occupy under the lease may be ground for an assignee of the lessor taking proceedings to get possession, because the lease is void, yet that can be done at law, and such refusal constitutes no ground for relief in equity separate from so taking possession. The assignee must rely on his action against the lessee, and his assignor (the lessor) on their covenants, and not on any supposed aid from a court of equity.
6. Where the assignment by a lessor of the lease to another, only carries a right to the rent and other covenants as choses in action, instead of being a grant of the assignor’s reversionary interest in the land for the term of years specified in the lease, the assignee has still less right to a receiver, before judgment, than if he owned both the reversion of the land, for the term, and the rents.
(Before Robertson, Ch. J., and Barbour and Monell, JJ.)
Heard April —, 1867;
decided August 5, 1867.
This was an appeal from an order denying a motion to appoint a receiver of certain premises in the city of Hew York. In February, 1866, the defendant Blase Lorillard demised such premises to the defendant Hurlburt, for ten years from the first of May following, at the rent of $2500 per annum, payable quarterly, in the lease thereof agreeing to alter such premises according to plans alleged therein to be annexed thereto, but never in fact annexed. The next day after the execution of such lease the defendant Lorillard, in consideration of $10,000 paid him by the plaintiff, assigned to him “ the agreement of lease executed by ” the defendant Hurlburt “ as tenant to ” the defendant Lorillard, “as landlord” of such premises, and all the' “ right, title and interest therein and thereto and to the rents, issues and profits arising and thereafter to arise
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during the whole term, and to the covenants and agreements therein contained.” And in such assignment the defendant Blase Lorillard covenanted to make all repairs, to pay all sums due on mortgages or for taxes, and to keep such premises insured, and “ guaranteed the performance of the covenants and agreements of the lessee during” such lease. Such lease and assignment were duly certified and recorded. The defendant Lorillard deposed, and he was not contradicted therein, that the arrangement with the plaintiff was in substance a loan to him of the consideration ($10,000) upon the security of such assignment of lease, and that the plaintiff exacted from him the whole amount of the rents, and his guaranty therefor as a consideration for such loan.
The defendant Lorillard did not make any alterations of such premises, and the defendant Hurlburt therefore refused to enter under his lease. Lorillard conveyed the premises to a son of his, who conveyed the same to the defendant Emma C. Lorillard, his mother, who is now in possession thereof, occupying the same with her family.
The plaintiff recovered a judgment in the Supreme Court of this state against the defendant Lorillard for $657.81, for a quarter’s rent of. such premises, on which an execution has been issued and returned unsatisfied, and he has commenced actions against the defendant Hurlburt for rent due on such lease, which are still pending.
The plaintiff deposes, from information, that the conveyance by Lorillard to his son is fraudulent as regards him, and that the deed from the latter to his mother is. also fraudulent. The defendant Lorillard testifies that it was executed in consideration of the release by his wife of her dower in other valuable real estate, which is not contradicted.
The premises in question are subject to a mortgage of $10,000 which is now liable to be foreclosed, and to
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two years taxes. The case at special term is reported 6 Rob. 260 .
L. Birdseye, for the appellant, plaintiff.
I. The learned judge at the special term errs in his statement of the right of the plaintiff as the assignee of B. Lorillard’s lease to Hurlburt. The plaintiff took more than the rent reserved in the lease. True, the rent was the main, thing sought to be acquired—but there were other things transferred, viz: the covenants which secured the payment of the rent, and which, in the event of failure to pay the rent, gave the lessor, or the lessor’s assignee, the possession of the property itself, instead of the value thereof. By the assignment, Lorillard assigns and transfers to Huerstel the lease in question, and all his “right, title and interest therein and thereto, and to the rents and issues and profits arising, and to thereafter arise, during the whole term thereof, and to the covenants and agreements therein contained.” One of the “covenants and agreements ” thus assigned gave to the landlord the right to re-enter the premises, in case of non-payment of rent. The plaintiff had, therefore, under his assignment of the lease : 1. The right to the rent, in case such rent was paid. 2. In the event of the tenant’s failure to pay the rent, the right to enter on the demised premises, and hold them to satisfy the claim for the rent.
H. By the lease, the landlord conveyed to the tenant all his interest and estate in and to the demised premises, for the term of the demise. As long as the tenant’s covenants were observed, the landlord had no present right to possess the premises; he could take his rent as it fell due, and no more; but if the rent was not paid, he could take the land itself in place of the rent, under the covenant for reentry. - By the assignment, the plaintiff acquired this right to re-enter; and thus obtained an actual and subsisting
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interest in the land itself, although, till breach of the covenant to pay the rent, this interest was but a security for the payment of'the rent.
ITT. The plaintiff, as the “ assignee of a lessor of a demise,” had the same remedy by entry, as well as by action, as his grantor had. (See 1 R. S. 747, § 23.) This statute is not limited, as is supposed by the learned judge below, to one who has become, by assignment, the owner of the demised property for a period beyond the term ; i. e. to the reversioner. It extends to one who takes the interest of the lessor only for the period of the term, and not a day beyond. This is the very language of the statute: “ The assignee of the lessor of any demise, shall have the same remedies,” by entry, &e. “ as their grantor or lessor had.” This clause, “as their lessor had,” applies to a case like the present, where the assignee takes merely for the term of the demise, and nothing beyond it.
IV. The plaintiff, as the assignee of the landlord, had the right on non-payment of rent: 1. To recover-the premises by ejectment, under 2 R. S. 505-6, (part 3, ch. 8, title 9, art. 2,) and of section 3 of chapter 274 of Laws of 1846; or, 2. To obtain the same by summary process under the statute. (See 2 R. S. 513, § 29.) As the “ assign ” of the landlord, the plaintiff came exactly within the description of the persons who, under these statutes, might take these statutory proceedings.
V. ■ It is therefore respectfully submitted, that the learned judge below erred in holding that “the only rights and remedies of the plaintiff are to receive the rents, and to compel their payment, by action upon the covenants to pay.” Such a limitation of his rights, is a direct and positive violation of the rights secured to him by the lease itself, by the assignment thereof, and by the statutes above referred to. In other words, by the lease and the assignment thereof, from the lessor to the plaintiffs, the latter
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was subrogated to all the rights of the lessor—both to the rents and to the estate—during the term of the lease, to the exclusion of the lessor, and all claiming under him.
YI. Lorillard, in and by his assignment, guaranteed to the plaintiff the performance of the covenants and agreements of the tenant and his assigns, during the continuance of the lease; and also covenated to make, at his own expense, the alterations on the premises which were required by the lease; to pay all sums of principal and interest due on any mortgage upon the premises, and also to pay all taxes, assessments, &c. These covenants run with the land. (Taylor Land, and Tenant, 261, 262, 263. Post v. Kearney, 2 Comst. 394. Childs v. Clark, 3 Barb. Ch. 52 . Van Rensselaer v. Hays, 19 N. Y. Rep. 68 . Allen v. Culver, 3 Denio, 284 . Norman v. Wells, 17 Wend. 136 . Tyler v. Heidorn, 46 Barb. 439 .) These covenants in equity bound the premises in the hands of the lessor; he being at that time the owner thereof. They also bound the premises in the hands of third persons, who took them under him, from the time of the recording of the assignment and guaranty. Especially did they bind third persons, who were volunteers ; who had actual notice of the covenants; and who. took the property without paying value therefor. In the hands either of Lorillard, or of such grantee, they raise a trust on that property, against him, and all claiming under him, that the property itself shall be devoted to the performance of this covenant. (2 Story’s Eq. Jur. 8th ed. § 1231, and cases cited.) In equity, Lorillard was bound, and his son and wife, as grantees, are bound, not to do any act whereby the right, title, estate or interest of the plaintiff' can be impaired, prejudiced or destroyed.
YU. The action is brought by the plaintiff in a two-fold character: 1st. As assignee of the lessor, and on his guaranty to pay the rent as due. 2. As a judgment creditor, who has exhausted his remedy at law to reach the
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estate of the judgment debtor, of the title to which he has fraudulently divested himself.
Yin. In either aspect, he is entitled to the relief sought. The motion for the ■ appointment of the receiver, was “pendente lite,” and affected the rents and possession which belong to the plaintiff for ten years, the term of the lease. And the court, at special term, erred in denying the motion.
1. The rents were the plaintiff’s, under the lease.
2. The grantee, Mrs. Lorillard, took subsequent, and subject to the lease, and was not entitled to the rents, or any part of them, nor to the possession of the premises during the term.
3. The lessor’s covenant of guaranty was entirely overlooked. The opinion is based upon the assumption that the plaintiff’s right rested exclusively upon the mere assignment or transfer of the rents, whereas the assignment contained a covenant of guaranty, in and by which the plaintiff acquired an equitable lien on the demised premises, then the property of the lessor, so that the plaintiff should be secured and paid the rent.
This is and was more than a mere personal liability; it was a covenant to pay rent which runs with the land, and affected as well Lorillard, the lessor and grantor, as his grantee.
IX. The court below erred in holding that Mrs. Lorillard, as grantee, subsequent to the date and recording of the lease, had such an interest in the real estate, as to bar or prevent the plaintiff obtaining satisfaction of the rents due under the lease, by resorting to the possession of the property. Her rights as grantee were postponed to the term fixed by the lease. His right to the rent excluded all others from its receipt, and he alone could maintain an action for its recovery. This could not be done by the grantee, Mrs. Lorillard.
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X. The property being vacant and unproductive, and being subject to taxes and assessments, and to interest on the mortgages, it is indispensable that the court should interfere and protect it from destruction.
XI. The learned judge below erred in holding that Mrs. Lorillard, as grantee of the premises, has any possession of them during the ten years for which the lease was to run. Before the conveyance under which she takes, the husband had conveyed the premises for ten years, by the lease in question. That lease was duly recorded. She therefore took, subject to the lease, and can have no legal title to the possession of the premises till the end of the ten years. The assignment of the lease and of the covenants therein, by the lessor to the plaintiff, vests in the plaintiff the rents and the rights to possess the premises, in case of nonpayment of rent. So that she can have no interest in the premises, until the termination of the ten years for which the lease was given.
XTT. Xeither of the defendants has any standing in court, or any right to object to the appointment of the receiver.
1. Blase Lorillard has not. He demised the premises to Hurlburt, and then assigned the lease to the plaintiff, and conveyed the reversion through his son to his wife. He is therefore divested of all interest, present or future, actual or contingent, in the premises.
2. Hurlburt has not. He has refused, as tenant, to go into the possession of the premises; abandoning them, for want of the alterations covenated for in his lease.
3. Mrs. B. C. Lorillard has not; for she took, subject to the lease. She also took, without consideration, or value, and with notice of the plaintiff’s rights. She can have no interest in the premises till the end of -the term for which the lease was granted.
XTTT. The plaintiff having obtained a judgment against the assignor and lessor of the lease, on his guaranty, and
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having an execution returned unsatisfied, is entitled to have a receiver of the premises, pending the action to set aside the conveyances to Lorillard’s son, and by him to Lorillard’s wife. "When equitable grounds appear which entitle the plaintiff to the rent, a receiver will be appointed. (People v. The Mayor, &c. 10 Abb. 115 . Congdon v. Lee, 3 Edw. Ch. 304 .) The remark of the judge below, that he “ had never known of extending a receivership to land, the title to which was in controversy,” might be correct, if it was intended to. apply to a case where two parties were claiming lands, by distinct, independent, and adverse titles. The controversy here is not such an one. Here, the judgment creditor claims under and by the title of Blase Lorillard, and not by an independent, adverse title. He admits that Blaise Lorillard had the title, and that independent of the rights of the plaintiff as his assignee" and creditor, Lorillard would have had the right to convey the property to his son, wife, or any other person. But he insists that the conveyance of the title in this case, through the son to the wife, was fraudulent as to the plaintiff and other creditors. The 244th section of the Code provides that a receiver may be appointed on the application of either party, when he establishes an apparent right to property, which is the subject of the action, and which is in the possession of an adverse party, and the property or its rents and profits, are in danger of being lost or materially injured or impaired.
It has been shown under the preceding points, that the plaintiff is entitled to the possession of the property, growing out of his right to re-enter, for the breach of the covenants in the lease. He had, therefore, an actual right to the property. It is entirely unoccupied and unproductive of rent or income; and its rents are being wholly lost; notwithstanding the rule that a receiver will not be appointed of real property, unless in extraordinary cases,
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there can be no doubt but that the court has the power to appoint a receiver of real property. (Willis v. Corlies, 2 Edw. Ch. 281 . Congdon v. Lee, 3 id. 304 . Waterman & Eden on Injunctions, 3d ed. vol. 2, pp. 355, 356 and notes, and cases cited in notes.)
XIV. The conceded facts of this case, assuming that the' court has the power to grant a receiver over real property, show the propriety of the appointment of a receiver in this case.
G. Tillotson, for the respondents, defendants.
I. The plaintiff'has no property nor interest in the real estate mentioned in the complaint. He took no conveyance of the estate whatever. He purchased only the covenants of the lessee to pay rent, secured by Mr. Lorillard’s personal guaranty. There was no grant of any interest in the land itself. He acquired no lien whatever upon or affecting the land. He relied upon the covenants and guaranty, and must take his remedy upon them alone.
TT- The Code, section 244, subdivision 1, provides that a receiver may be appointed “ before judgment, when the party establishes an apparent right to the property which is the subject of the action.” Here the plaintiff shows no apparent right. He shows none under the assignment of the lease, for that conveys no interest in the land, nor under his judgment against Lorillard, for that is not a lien on the property. The complaint does show an apparent right to the property in the defendant Emma C. Lorillard.
HI. It has never been the practice of the courts to appoint receivers of real estate, except where the right of the plaintiff is clear. In The People and Taylor v. The Mayor, ( 8 Abb. 13 ,) Judge Davies appointed a receiver on the ground that the plaintiff showed a prima facie right to the property, and the Court of Appeals had decided that the corporation had no title. He says: “ It seems to be the
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well settled rule, where the right is clear, and the party in possession has no legal title, to appoint a receiver in the first instance.” In Cole v O’Neil, (3 Md. Ch. Decisions, 174,) the court say: “This is not a case, therefore, where a receiver is put upon property against the legal title. But it is a case in which the plaintiff shows an equitable title to a part of the property, and a legal and equitable title to another part, in' which the defendant upon the case, as it now stands, makes out no title, legal or equitable, and in which the preservation of the property requires that it should be taken under the control of the court.” In Lancashire v. Lancashire, (9 Beavan, 129,) the court refused a receiver on the ground that the right between the parties was doubtful. In Smith v. Wells, ( 20 How. 162 ,) Judge Leonard refused the appointment of a receiver on the ground that the plaintiff had no interest in the property. Legal title in the plaintiff is essential. ( 10 Abb. 117 . Willis v. Corlies, 2 Edw. Ch. 287 . Hamilton v. Acc. Trans. Co., 3 Abb. 258 .)

If the plaintiff acquired the reversionary interest of the defendant Lorillard in the premises in question during the existence of the lease made by the latter, by virtue of the instrument which assigned such lease to him, he took it cum onere, that is with the obligation of performing all that such lessor was bound to perform in order to make the lessee liable for any rent. The lessor thus, by his covenant in such assignment, was left as a mere surety for the payment of such rent only in case the plaintiff did what was necessary to make such lessee liable; because otherwise he would lose all right of recourse against such lessee by, virtue of any subrogation in case of paying such rent himself to the plaintiff. If, however, the lessor was to be made absolutely liable on his covenant for such rent,

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without any obligation on the part of the plaintiff, the transaction of an apparent sale of the lease became a usurious contract to pay $25,000 in forty quarterly installments for a loan of $10,000 only, and as such void.

But assuming such contract not to be usurious, and that the plaintiff acquired a reversionary interest in the land, to which the rents reserved were incident, I do not find any principle of law which justifies the appointment of a receiver either of the fee or even of the estate for years in such land.

The complaint asks, as final relief in the action, that the defendants who are holders of the fee of the premises in question, in remainder, should convey it to a receiver, to be taken possession of and leased by him, and out of the rents to have the surplus, after paying taxes, assessments and interest on a prior incumbrance, applied quarterly or monthly in satisfaction both of a judgment obtained by the plaintiff against tíre defendant Lorillard for a quarter’s rent of such premises due under such lease and of all the rents reserved in such lease hereafter to accrue. The notice of motion on which the order appealed from was made, specified simply the appointment of a receiver of the premises in question, to rent them and receive the rents until the further order of the court. Of course the court would not be authorized to appoint a receiver generally to collect and hold rents for future adjudication, unless the title to the land formed the subject of litigation under the first subivision of the 244th section of the Code of Procedure, or the plaintiff showed an apparent right to the rents ■ eo nomine, or an ownership of them as such, or some equity to have them applied so as to prevent injury to him or protect his rights. The counsel for the plaintiff has not undertaken to specify how far he seeks to have the authority of the receiver extend, or by what event or upon the lapse of what time he proposes to

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have it terminated. It is fair, therefore, to assume that he proposes to have the powers of the receiver as extensive and of as long duration as the receivership asked for in the complaint; in other words, to anticipate the sole, final relief asked for by him, if the case in the complaint entitles him thereto.

Except by virtue of his judgment, I do not perceive any shadow of right by which the plaintiff can claim to have the fee of the premises in question sequestered by this court to pay rent of them past due, and still less that hereafter to accrue. Ho legal or equitable claim therefore could arise from the accidental union of the ownership of the term for years and the estate in remainder, in the same person. Hor could any lien have been created upon such estate in remainder either by the conveyance of a reversionary estate for ten years, or a covenant of guaranty for the payment of rents arising therefrom. The plaintiff could not have any such relief in the action ultimately, and has, therefore, no right to it by anticipation, as the ownership of the fee, or a hypothecation of it, is clearly not (except so far as the judgment is concerned) a subject of litigation in this action. It is therefore hardly necessary to notice how monstrous would have been any assumption by the court of power to create a virtual trustee of the fee, to lease the land and receive the rents, pay off incumbrances and satisfy the plaintiff’s claims for rent as they accrue, such trust to continue for at least ten years (the duration of the lease) and as much longer as might be necessary to accomplish the purposes of the trust. A similar exercise of authority is wholly unheard of. A sale by the officers of the court if the lease could operate as a mortgage of the fee, payable in installments, might be within its jurisdiction. But there is no conceivable principle of equity or fiction of law by which a lease or the assignment of it,

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could be converted into such a mortgage of the fee, merely because the assignor happened to be tenant in remainder.

Assuming, however, the plaintiff’s request to be more modest, and to reach only to a receivership of the premises during the term of the defendant Hurlburt; the same objection exists, of creating a standing trustee for at least ten years, to lease and receive rents during that time and apply them to paying off incumbrances and satisfying the plaintiff’s claims as they accrue. If there was any pledge of such estate for years, in law or in equity, for the payment of such rents, or any equity existed to have it applied in satisfaction of them, the proper and usual exercise of jurisdiction to enforce such lien or equity would only be by a sale of the estate for years. The plaintiff, however, does not ask for that, because he claims to be the owner of such term himself and a sale of it in an action to which he' was a party, might carry with it a right to all the rents, which he claims as incident to his estate. He proposes, instead of that the exercise of an unusual kind of jurisdiction by creating a trustee, to continue after judgment has been obtained in the action, who might by a lease to a tenant who should fail to pay his rent, place hims°elf in the same predicament as that in which the plaintiff is, and require a new receiver or trustee, and so on indefinitely. But the ground urged for exercising such equity is still stranger than the exercise itself; it is that an equity arises to have the rents of the land applied in payment of the plaintiff’s claim for rent, leaving the original lessor and lessee (the defendants Lorillard and Hurlburt) still liable, bécause at law, although the plaintiff could recover possession of his term by summary proceedings or ejectment, yet the contract would be thereby rescinded and the rent would cease, as being the consideration for the úse of the land. In other words, because the only remedy at law, apart from an action or distress, is a rescission of the contract and

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restoration of each party to their former rights, therefore a remedy must be provided in equity, and that too, before any judgment obtained by an action of covenant for rent, which remedy, in the absence of all stipulation by the parties by way of pledge or otherwise, is to have the consideration received- by one side sold in satisfaction of the unpaid consideration due from the other. Thus leaving the party who originally received the consideration thus taken away from him, still liable to make up the deficiency of the consideration thus due; since otherwise the lessor would be compelled to leave the delinquent lessee in possession of the land, and have no redress except by action. It is seldom that any contracting party has three remedies at law to enforce a contract, but when he has, it certainly does not furnish a foundation for giving him a fourth in equity, by way of a right either in re, or ad rem. The defendants, of course, do not hold adversly to the plaintiff, nor is this action brought in order to obtain possession of the land, hi or is the basis of relief in it the protection of the property until the interests of the parties therein can be determined, for they are conceded, and there is a legal remedy for enforcing the plaintiff’s rights' therein. JSTor is there any pretense of a trust in the defendants for the plaintiff’s benefit, hi or is there any of waste done on the premises. The fact that the defendant Hurlburt refuses to occupy under the lease, may be ground for the plaintiff’s taking proceedings to get possession because the lease is void, but that can be done at law, and such refusal constitutes no ground for any relief in equity separate from so taking possession. The plaintiff must rely on his action against the lessee and his assignor for their covenants and his power of dispossession, and not on any supposed aid from a court of equity. There is no implied- or equitable pledge of lands by a lessee to lessor for rent, either conditionally or unconditionally,
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■which would justify the appointment of a receiver in an action to enforce such imaginary lien. Besides, there is nothing to prevent the plaintiff from pursuing any line of remedy he has upon an action for rent at the same time. He, however, proposes to take out of the defendant’s hands the property in question and lock it up by a trusteeship or receivership, while he is in fact pursuing such other remedies. The law presumes that rent is a fair equivalent for the land. The plaintiff proposes to lease such land anew, and out of the new rents to pay the old, without any proof what part of it they can pay, and so the receivership might continue forever. Yet in the meantime to harrass the parties by actions. Such a course smacks rather of oppression than equity. As, therefore, I cannot find in this case a resemblance to any one of the grounds upon which a receiver is usually appointed, the plaintiff is not entitled to it as assignee or grantee of the reversionary interest in the term for years.

The possession by the defendant, Blase Lorillard, of the premises in question, his failure to make alterations required by the lease to Hurlburt, and the refusal of the " latter to take possession, in consequence, are utterly immaterial on the question of a receivership. The plaintiff, if grantee of the reversionary interest in the term of years in question, can get possession if his rent is not paid. He stood in the place of the lessor when the alterations were to be made, and could, himself have made them so as to make Hurlburt liable if not so otherwise. Fraud in the conveyances to Lorillard’s son and wife of the remainder, does not concern the plaintiff, since they took subject to his rights if he took a grant of Lorillard’s reversionary interest'for the term of years in question by the assignment, inasmuch as that instrument was recorded.

I have considered the case as if the assignment to the plaintiff, of the lease to Hurlburt, constituted a grant to

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the former of the reversionary interest of the defendant Lorillard in the land for the term of years specified in the lease; but if it only carried a right to the rents and other covenants as choses in action, which seems the better opinion, although such an assignee can sue in his own name ( 2 Hill, 274 ,) he has still less right to a receiver before judgment, than if he owned both the reversion of the land for the term and the rents; unless the want of power to re-enter, at law, constitutes a claim for a remedy in equity.

The charge of fraud in regard to the conveyances to the son and wife of the- defendant Lorillard is denied on behalf of the defendants^ and Mrs. Lorillard claims the premises in question as a bona fide purchaser for value, consisting of a release of her estate in dower in other premises. This is not denied by the plaintiff, and he could not, therefore, have a receiver appointed by reason of any such fraud, were this otherwise a proper case for one.

The order appealed from should be affirmed, with costs.

In view of the conclusion to which I have arrived upon a careful examination' of this ease, it is not necessary to consider whether the conveyance of the premises in Bleeker street by Blase Lorillard to his son for the purpose of being transferred by the latter to the wife of the former, without any valuable consideration being paid or given therefor, so far as the papers show, except a relinquishment by such wife, at some time, of her inchoate right of . dower in. other property, was or was not a fraud upon the plaintiff as a creditor of Blase Lorillard.

By the assignment to the plaintiff, Blase Lorillard transferred and set over to him, not only the lease of the premises known as. Ho. 69 Bleeker street, and all his right, title and interest therein and thereto, but, also, all his right “ to the rents, and issues and profits, arising and to hereafter arise during the whole term ” of the lease.

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Those words “ issues and profits," are wholly inapplicable to the lease, in any technical or legal sense, and can properly be construed as applying only to the land itself. For, the word “ issues” or “profits,” used singly, means the profits produced, or proceeds of lands, and, as a term in law language, is never used in any other sense. (3 Black. Com. 280. 2 Steph. Com. 2, 3. Burr. Law Dic.) And, where the three words are used, and the grant is of the rents, issues and profits of land, either for a term or in perpetuity,. the land itself passes, pro tanto. (Co. Litt. 4, b. Com. Dig. Grant, E 5. Cro. Eliz. 190. 17 John. 548 .) The assignment, therefore, is, by its terms, a grant of the land itself, with all the rents, issues and profits which may arise therefrom, for and during the period fixed by the lease; and for that reason, if such assignment is valid, the plaintiff has a full and perfect remedy at law by his action in ejectment, for the recovery of the possession of the premises, and does not need the interposition of the equitable powers of the court for any purpose ; not even to set aside the deed executed to Mrs. Lorillard, subsequent to the assignment, as a cloud upon his title and right to possess and enjoy the premises for the term.

Besides; the affidavit of the principal defendant states that the assignment in question was made upon and in consideration of a loan to him, then made by the plaintiff, of the sum of $10,000, upon the undertaking of such defendant, that he would pay to the plaintiff therefor $25,000, in forty equal quarter yearly payments of $625 each, and upon the ' assignment to the latter of the lease in question, to be held by him as security for the payment of the said sum of $25,000; and those averments are not only uncontradicted, but are fully proven and established, it appears to me,, by the deed of assignment itself. For, in that instrument, the defendant acknowledges the receipt, upon the day of its date, of the sum of $10,000 from the plaintiff^

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and in consideration thereof, assigns and transfers the lease, and covenants and agrees that he will make certain alterations upon the premises, pay off all mortgages, pay all taxes and assessments, and keep the property fully insured, and, also, guaranties the performance of the covenants and agreements of the lessee in said lease, including, of course, the agreement of the latter to pay the rents for ten years at $2500 per year. Considering all the circumstances detailed by the defendant with the • agreement appearing upon the face of the deed, it appears to me impossible to resist the conclusion that it was the intention of the parties to the latter instrument, not merely to sell and purchase a lease, but to provide therein for the payment of an usurious loan. Such instrument is therefore void.

For these reasons, the order appealed from should he affirmed.

Cases cited