Shannon v. Cavanaugh

SHAW, J.

Action to enforce the specific performance of a covenant to give a chattel mortgage to secure the rent reserved in a lease of real estate.

A general demurrer interposed to the complaint by defendants was sustained. Plaintiffs failed to amend their complaint within the time allowed therefor; whereupon, judgment was rendered against them, from which they prosecute this appeal.

It appears from the complaint that plaintiffs were the owners of a building, the first floor of which consisted of storerooms and the upper floors of which were divided into rooms and fitted up for rooming-house purposes. On March 6, 1908, plaintiffs leased the upper floors of the building to defendants for a period of two years. The express consideration of the lease was the rent reserved therein, which was payable monthly, and numerous covenants and agreements, neglect and failure to perform which on the part of lessees gave the lessors the right to terminate the lease and re-enter and repossess the premises. Among other covenants contained in the lease on the part of the lessees was the following: “And said lessees further covenant and agree that they will pay the said rent in installments when the same become due, and to secure the payment of same to lessors, they hereby agree that the lessors shall have a lien for the security of the payment of said rent upon all furniture brought - into the house by the said lessees, and that, after the said lessees install their furniture therein, that,

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upon demand of lessors, lessees will execute to the lessors a chattel mortgage, or such other instrument as they may deem necessary, upon the said furniture to secure the rent aforesaid.” It is alleged that defendants entered into possession of the premises and “purchased a certain lot of furniture and furnishings, and placed the same in said building for the purpose of conducting a rooming-house therein, and that the- said furniture and furnishings consisted of carpets, beds, bedding, curtains, chairs, and general hall, parlor, bedroom and kitchen furniture, the exact amount and the exact kinds thereof being unknown to plaintiffs.” That theieafter plaintiffs made demand upon defendants that they execute a chattel mortgage upon said furniture to secure the payment of the rent in accordance with their covenant so to do, but that defendants refused to execute such mortgage, and declared that if they could not make the house pay, they would take the furniture away and leave the house. It is further alleged that defendants have no other property in this state out of which plaintiffs could collect any judgment that they might obtain for the failure to pay the said rent when the same becomes due, and that defendants threaten to mortgage or otherwise dispose of the said furniture, or remove the same from the said premises, so as to prevent these plaintiffs from obtaining any security therefrom or thereby. The complaint further alleges irreparable injury and want of an adequate remedy at law.