Agen v. Nelson

51 Wash. 431 | Wash. | 1909

Rudkin, J.

— On the first day of February, 1902, the plaintiff Agen leased to the defendant Nelson the west 100 feet of the south half of lot 8, in block 15, of Boren’s Addition to the city of Seattle, for the term of five years, at the monthly rental of $55 per month for the first year, and $75 per month for the remaining years, payable monthly in advance. The lessee further covenanted to pay promptly and before delinquency all taxes levied or assessed against the south half of said lot 8 during the term. On the 26th day of July, 1902, Nelson leased or sublet an undivided one-half interest in the demised premises to one Sarah Slyfield, for the term of 53 months and 29 days from August 1st, 1902, subject to a prior lease of a portion of the demised premises to the defendant Love. On the 28th day of July, 1902, the remaining undivided half interest in the demised premises was sublet to one H. P. McGuire for the term of fifty-three months and twenty-seven days from the first day of August, 1902, subject likewise to the Love lease.

This action was instituted under the unlawful detainer statute against Nelson and Love, to recover possession of the demised premises for failure to pay the rents reserved for the months of August, September, October, November, and December, 1906, or surrender possession on notice and demand, and to recover taxes paid by the plaintiff, and double the amount of the unpaid rents. The court gave judgment simply for the taxes and double the amount of the rents due, the term having expired and the defendants having surrendered possession long before the trial. From this judgment the defendant Nelson has appealed.

The appellant contends that the subleases from him to Slyfield and McGuire constituted an assignment of his term, in contemplation of law, and that he was thereafter released from the obligation to pay rent. The subleases were not of the entire premises, as they were subject to the prior lease to the defendant Love, nor were they for the full term of th original lease. They did not constitute an assignment, therefore, in contemplation of law, as a part of the original term was reserved to the original lessee. Shannon v. Grindstaff, 11 Wash. 536, 40 Pac. 123; 24 Cyc. 974. Nor does it appear that the appellant was released from the obligation to pay rent by any act of the parties. Rent for the greater part of the term of the original lease was paid to the respondent by the subtenants, but receipts were at all times given in the name of the original tenant, and nothing further was shown tending to establish a substitution of parties. We are therefore of opinion that the appellant was not discharged from the obligation to pay the rent which he assumed in his original lease, either by operation of law or by any act of his landlord. It is further contended that actions of this kind will only lie against parties in possession at the time of the commencement of the action. Conceding this to be true, it clearly appears from the testimony that Mrs. Love, a subtenant of the appellant, was in possession at the time of the commencement of the action, and under the express provisions of Bah Code, § 5527 (P. C. § 1170), the action will lie in such cases, and the party in possession by subtenant is guilty of unlawful detainer.

It is lastly contended that- the court erred in allowing a recovery for taxes paid by the respondent. The appellant covenanted to pay these taxes, and we see no reason why a recovery should not be had in this action for a breach of that covenant.

Finding no error in the record, the judgment is affirmed.

Mount, Crow, and Dunbar, JJ., concur.

Hadley, C. J., Fullerton, and Chadwick, JJ., took no part.