19 Utah 246 | Utah | 1899
This is an action to set aside the forfeiture of a lease and seeking certain incidental relief.
The controlling facts in this case are as follows: The said Hamilton G. Park being the owner of certain real estate in Salt Lake City, on which the Manitou Hotel is now standing, he and his wife, Agnes S. Park, on the 1st day of April, 1892, leased the same to the defendants Simondi, Thompson, and Ingersoll for the period of twenty-four years. Among other provisions of the lease it was stipulated that the lessees should pay as ground rent, monthly in advance, $187.50, keep the buildings, to be erected thereon by said lessees, insured, pay all taxes, rates, and assessments of any and all description on the property, and that the same with the improvements thereon should at the expiration of the lease be turned over to the lessor. It was further covenanted that if the rent or any part thereof should not be paid, when due, and remain unpaid for twenty days thereafter, or if default should he made in any of the covenants of the lease, to be kept by the lessees or their executors, administrators, or assigns, that it should be lawful for the lessors to enter
The foregoing facts are undisputed, and the plaintiff, Harvey M. Bacon, alleged them in his complaint.
The defendants, Simondi, Thompson, and Ingersoll, in their amended answer alleged that, ‘ ‘ about the month of February, 1894, the said James H. Bacon became, and at all times thereafter continued to be and now is, the sole owner of said note so executed by these defendants; that the said pretended sale of said lease by said James H. Bacon, trustee, was so made to his said brother, Harvey M-. Bacon, with the design, purpose, and understanding with his said brother that he, Harvey M. Bacon, should hold the same for the sole use and benefit of said James H, Bacon, and should thereafter, convey the same to said
Like allegations as the foregoing were also made by Hamilton G. Park, and his wife, in their answer.
The following undisputed facts also appear: At the time said alleged sale and transfer of said lease was made, the taxes on the property leased had not been paid, and the property had been sold for the non-payment of the taxes for the years 1893 and 1894, and the time for redemption would expire in the month of January, 1896. The taxes for 1895 were delinquent. After said sale and transfer, neither plaintiff nor the original lessees paid said taxes, as provided in the lease. There had been default in the payment of the rent for the month of September and other months previous thereto. The rent for the month of September became due on the first day of said month, and having remained unpaid for twenty days thereafter, the defendant, Hamilton G. Park, on the 21st day of September, 1895, re-entered upon the,leased premises, retained possession thereof, and declared said lease forfeited. He afterward redeemed the premises from the tax sales, and in doing so had to pay $2,T68. He also had to pay the taxes for 1895, which amounted to SI,121.56. The plaintiff was aware of said defaults in
The plaintiff also alleged collusion between the said Park and his co-defendants, Simondi, Thompson, and Ingersoll to defraud him of his interest in said leased premises, and that the re-entry and declaration of forfeiture by the said Park were made in pursuance of such collusion.
The aforesaid allegations of plaintiff’s complaint were put in issue by the answers of said defendants, and at the trial the court below found in favor of the defendants, upon said issues, and we think that the findings of the court, in that regard, are fully sustained by the evidence.
Upon the foregoing statement two questions are presented for consideration.
1. Was the alleged sale and transfer of said lease made bona fide, or for the use and benefit of the said James H. Bacon, the trustee, by whom the same was made ?
2. Was the defendant, Hamilton G. Park, justified in re-entering the leased premises and declaring the lease thereof forfeited?
If I received a note, I would keep it and probably enter it in the bank books. If a note was taken, I should think it was entered on the bank books. If it was not, I can not tell why it was not. Harvey M. Bacon paid me five thousand dollars. I do not remember now just how it was paid. I think it was on the day of sale. The plaintiff never transferred this property back to me. It is still in his name, I guess. After this suit was commenced, the transaction was cleared up between him and me, and the property became mine from that time, and I returned to him whatever he had given for it.”
On cross-examination, he further testified: “I became the owner of the Thompson, Ingersoll, and Simondi note from the American National Bank, but it was not indorsed to me, and I have been the owner from that time until the present. This lease was never transferred back to me from my brother. After this litigation was started, the question came up about this lease, and I took it back and released him. I think I had his note, but am not sure; whatever I had against him I gave up. I think at the time of this sale I took his note for the amount of the sale, and canceled it, and gave it back to him when I took the lease back. On the day of the> sale I was the owner of the Thompson, Ingersoll, and Simondi note, although it stood in the name of Boss for collection.”
The only statement made by the plaintiff on the subject of the consideration, was as follows: “I am of the opinion that I gave James H. Bacon a note for this lease, and that the note was afterward turned back to me.”
J. W. Edmunds testified as follows: “I have charge of the records of the Bank of Salt Lake, and am familiar with the note that Thompson, Ingersoll, and Simondi executed to the American National Bank for $ 19,345.70, dated July 3, 1893. I have examined the books of the bank and papers of the bank with reference to the entries relating to this note. The books show no credits at all upon the note. There is no entry of any kind, either credit or debit, to any general or individual account on
We are satisfied that no consideration was paid by the plaintiff for the assignment of said lease to him, and that the sale and lease was made solely for the benefit of the said James H. Bacon. As he acted in the matter in the capacity of trustee, the transaction was void, and the assignment and transfer to the plaintiff conferred upon him no rights in the leased premises.
In regard to the second question: the character of the defaults in the payments of rents and taxes, for which reentry was made, and a forfeiture of the lease declared, is an important element in the case.
It is contended by counsel for the. plaintiff, that as no notice was given or a demand made for the rent and taxes, that the re-entry and forfeiture were unwarranted by law and in violation of the rights of the plaintiff. The answer to this is, 1. The alleged sale and transfer of the lease to him conferred no rights in the leased premises. 2. So far as the taxes were concerned no demand for them in any possible view of the case was required. They were not payable to Hamilton G. Bark, but to the county treasurer.
In the case of Davis v. Burrill et al., 10 Common Bench (70 Eng. Com. Law, 822), it is held that “where a lessee covenants to pay rates and taxes, no demand is necessary to constitute a breach so as to entitle the lessor to avail himself of the proviso for re-entry.”
By the covenants of the lease of said premises, in case of default, the lessor was authorized to re-enter without
James H. Bacon represented his brother in most, if not all, of the conversations with Hamilton G. Park, upon the subject of the lease. Park, in his testimony, stated, ‘ ‘ I met Harvey M. Bacon some time in October in James H. Bacon’s office, the first time I ever knew him and the last time I saw him until I saw him here in court. ’ ’
The intention of the plaintiff and his brother, James H. Bacon, regarding the taxes, is stated by the latter in his testimony, as follows : “I knew the property had been sold for taxes, and that my brother would have redeemed if Mr. Park had not done so before the time run out. He would have redeemed on the last day, but he was hoping all the time it would be adjusted.”
The plaintiff was aware of the covenants in the lease relating to forfeiture. He knew that default had been made in the payment of taxes for several years (the deficit for taxes amounted to about $4,000), and that the premises had been sold for the non-payment of the same, and that the time to redeem had nearly expired, yet he did not intend to redeem until the last day. Such intention and such delay was a gross violation of the covenants of the lease. The evidence shows that Mr. Park was in straightened circumstances. His property was in danger of being
Equity will not relieve against a forfeiture of a lease, where the breach of the covenants have been so culpable, long persisted in, and detrimental, as the evidence in this case shows the breaches to have been.
The decree of the court below sustaining the validity of the forfeiture of said lease is affirmed, with costs.