58 P. 1 | Cal. | 1899
Action to recover rent. Findings and judgment were for the defendant, a corporation, and plaintiff appeals from the judgment and from an order denying his motion for a new trial.
The complaint set out an indenture of lease, executed by the parties hereto in January, 1892, whereby the plaintiff leased to the defendant a parcel of ground 275 feet by 137.6, being part of a fifty-vara block No. 99, in the city of San Francisco, for the term of fifteen years, at a specified rental, payable monthly, and alleged possession taken by defendant thereunder, which possession has been ever since continued, and that the rent for certain months in the year 1895 had not been paid. For a first defense the defendant denied each and every allegation of the complaint. For a second defense it was alleged that on October 19, 1887, Solomon Heydenfeldt, being the owner in fee simple of said premises, executed and delivered to the plaintiff a deed, conveying to him the said leased premises, in trust: “First, to take and hold possession of said land, and to rent and lease the same to as great extent as I could or might do before the execution of these presents. ’ ’ The second, third, fourth and fifth items provided, in substance, that the trustee should collect the rents, pay the taxes, etc., and, after retaining five per cent of the rents as compensation, to pay, so far as the rents were sufficient, for the boarding, lodging, washing, office rent and clothing of the party of the third part (Solomon Heydenfeldt, Jr.), and any surplus also to be paid to him. “Sixth. Upon the death of the party of the third part, leaving children, the trust shall end and the property be conveyed to such children. If he shall die, leaving no children, then to convey the same to the party of the first part, or, in case of his death, to his right heirs. ’ ’ This defense further alleged that said deed of trust constituted plaintiff’s only title; that said indenture of lease was entered into
The court found that the lease was executed as alleged; that defendant entered under it and has ever since remained in possession, and has not been ousted therefrom, or restored •or surrendered the same to plaintiff; that plaintiff has performed all the conditions on his part; that the rent for the time mentioned in the complaint has not been paid, though demanded; that Heydenfeldt was the owner of the premises at the date of the execution of said deed of trust; that plaintiff's only title was as trustee under said deed; that he had no other power or authority to lease said premises or collect the rents than that given by said deed; that Solomon Heydenfeldt, Sr., died in September, 1890, and that Solomon Hey
It is conceded by respondent that Ashton had such title and authority under the deed of trust -as enabled him to
It is contended by respondent, however, that Ashton’s title was terminated by the death of Solomon Heydenfeldt, Jr., and that by the same event the lease was terminated, and, as the rent sued for accrued after the termination of the lease,
The cases cited by respondent to the proposition “that a tenant may always show, if he can, that his landlord no longer holds title,” remain to be noticed. McDevitt v. Sullivan, 8 Cal. 593, 596, is not in point. It was contended by the plaintiff in that case that Sullivan was estopped to deny McDevitt's title. But the court said: “Sullivan did not obtain possession under McDevitt, and he is not estopped from showing that the attornment to McDevitt was „made under a mistake of fact.” That case was, therefore, within a recognized exception to the general rule. Corrigan v. City of Chicago, 144 Ill. 537, 21 L. R. A. 212, 33 N..E. 746, has no application to any question in this case. There the property was leased for a term of years, and afterward the whole of the property covered by the lease was condemned and paid for by the city for street purposes, and it was- held that the whole of the title, both of the landlord and tenant, was extinguished, and the tenant thereby relieved from the payment of rent, and that the tenant could plead such extinguishment in bar of an action for rent accruing thereafter. In Lamson v. Clarkson, 113 Mass. 348, 18 Am. Rep. 498, the plaintiff had an estate in the premises for the life of Lancy, and leased to defendant for one year, rent payable monthly. Lancy died during the term, and this action was for rent accruing after his" death. Drake owned the reversion, and served notice on the tenant not to pay rent to Lamson. Defendant knew of Lancy’s death, and
The distinction between these cases and the one at bar is too clear to require elaboration, and no others are cited to this point by respondent. In Bigelow on Estoppel, fifth edition, 511, it is said: “But, permissive possession being the ground of the modern estoppel, it is clear that the estoppel will prevail so long as such possession continues, though the contract of lease was void. And the authorities upon this point are numerous”: See Bailey v. Kilburn, 10 Met. (Mass.) 176, 43 Am. Dec. 423; Miller v. Lang, 99 Mass. 13; Morrison v. Bassett, 26 Minn. 235, 2 N. W. 851; Nims v. Sherman, 43 Mich. 45, 4 N. W. 434; Doe dem. Bullen v. Mills, 2 Adol. & E. 17; Fleming v. Gooding, 10 Bing. 549. In Nims v. Sherman, supra, Mr. Justice Cooley, speaking for the court, said: “One who is a tenant in fact, it is justly held, shall not dispute the title under which he has obtained possession, even though he has since acquired a better title; but, when he has surrendered the possession obtained by means of the tenancy, he may at once turn about and try titles with his late landlord.” The foregoing principles are directly sustained in Palmtag v. Doutrick, 59 Cal. 154, 43 Am. Rep. 245 (a case of bailment), and Jeffers v. Easton, 113 Cal. 345, 45 Pac. 680. In both of these cases the rule stated by Wilde, J. (6 Rob. Pr. 364), is quoted, thus: “If the lessee is disturbed in his occupation by a party having a title paramount to that of his lessor, so that he cannot legally continue his occupation under the lessor without rendering himself liable to the other party, he may yield the possession, and take a new lease under him, or he may abandon the possession, and, in either ease, he will thereafter not be liable to pay rent to the original lessor. Such an entry and disturbance are equivalent to an ouster. ’ ’
Eliminating from the findings of fact those expressions which are mere conclusions of law, they require a judgment for the plaintiff as prayed for, and I therefore advise that the judgment and order appealed from be reversed, with directions to the court below to enter judgment for the plaintiff as prayed for.
We concur: Cooper, C.; Britt, C.
For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed, with directions to the court below to enter judgment for the plaintiff as prayed for.