Alsup v. Banks, 68 Miss. 664

Alsup v. Banks

68 Miss. 664 | Miss. | 1891

Woods, J.,

delivered the opinion of the court.

That the demurrer to the cross-petition was properly overruled is too clear to require any remark.

Equally non-maintainable is the proposition that the contract of lease was terminated by the death of the lessee, and that no suit *667to enforce tbe same could be prosecuted against bis administrator. That a contract of lease for a very valuable plantation, running for a term of five years, does not fall in tbe small class of contracts ended by tbe death of tbe lessee, is perfectly clear. Tbe execution of this contract was not with reference to a business which could not be carried on without tbe personal presence of tbe lessee. Such a thought cannot be supposed to have occurred to the parties to the contract, for the execution of it was not at all contingent upon the continued existence of the parties, or either of them.

The remaining contention on the part of appellant rests upon the proposition that there was an' annulment of the lease-contract by agreement, or by implication in law from the acts of the parties, and a surrender by the administrator. The facts are, that after the death of the lessee, and at the beginning of the second year of the term, the appellant signified to appellees his purpose not to carry out the contract, and to abandon and surrender up the premises, which was met by an expression of unmistakable unwillingness to that course by appellees; that soon afterwards appellant did abandon and vacate the premises; that appellees notified him that they would hold the estate of the lessee for the rents, according to the terms of the lease, and that they would let the premises for the account of the intestate’s estate, and hold it for any deficit that might arise; that appellees, after appellant’s abandonment of the premises, took possession and rented the place to others, at an annual rental less by about a thousand dollars than that agreed to be paid by the ‘deceased lessee; that appellees did all they could to obtain the best terms in renting to others, and that the price obtained was the highest and best that could be secured.

That there was no surrender, in the sense that there was such yielding of possession of the leased premises, by mutual agreement, which worked a cancellation of the original contract, and an ex-tinguishment of the leasehold estate, appears certain to us. There can be no reasonable inference, drawn from the facts above recited, tending even to show such mutual agreement and purpose. On the contrary, we have the expressed declaration of the unwillingness of appellees to that course, and their declared purpose, in the event *668of appellants abandoning the premises, to let the same, and hold the lessee’s estate for the difference between the sum thus obtained and that stipulated for in the lease-contract. On these facts the case seems manifestly against appellant’s contention.

. Nor do the facts that appellees took possession of the premises, after their abandonment by appellant, and rented them on the best terms obtainable, release appellant from his liability to pay as the representative of the deceaséd lessee, for all these acts of appellees were in the interest and for the benefit of the lessee, equally as for the interest and benefit of the lessors. There was no taking by the lessors of possession unqualifiedly and unconditionally, and a dealing with the premises in a manner inconsistent with the continuance of the unexpired lease. True, the lessor might have permitted the premises to remain vacant and untilled, and have recovered the entire rental from the lessee or his representative j but he was not compelled to take this course. He wisely and lawfully took the other course, whereby the interests of the lessee’s estate were largely subserved.

The decree of the court below conforms to these views, and must be

Affirmed.