Carr v. Ellison, 20 Wend. 178

Carr v. Ellison

20 Wend. 178 | N.Y. Sup. Ct. | 1838

By the Court, Bronson, J.

On the construction for which the plaintiffs in error contend, the lessor covenanted in case the value of the buildings was not paid, for a perpetual renewal of the lease : in other words, he agreed to renew the covenant for a renewal, as well as the other covenants contained in the lease. The courts lean against such a construction of the contract as will lead to a perpetuity, and will not infer an agreement for a second renewal from a general provision for a renewal of the lease with similar covenants. Rogers v. Hunter, 6 John. Ch. R. 215. Piggot v. Mason, 1 Paige, 412. Tritton v. Foote, 2 Bro. Ch. 636, and note (a) by W. Eden, p. 639. The parties did not, I think, contemplate more than two terms of 21 years. If the stipulation for 6C the same covenants” in the new lease, include the covenant for a renewal, it included also the covenant on the part of the lessee that he would erect a house on the land on or before the first day of November, 1793—a thing which *180was impossible in 1814, when the first term expired. Or, if we reject that part of the stipulation which relates to time, the covenant to build will still remain, and then the contract was that the lessee should erect a new house on the demised premises as often as he should obtain a renewal of the lease. It is difficult to suppose that this was the intention of the parties. The good sense of the contract seems to be this: the lessee agreed to erect a frame bouse on the premises, and the lessor stipulated to pay Mm the value of the building at the end of the term, or to compensate him by a renewal of the lease “ for the term of twenty-one years more.” After the lapse of a second period of twenty-one years, a wooden building could be of no great value, and the parties neither stipulated for pay, nor for a further renewal of the lease.

Although the lease was not in fact renewed at the end of the original term, the lessee and those claiming under him, had held the property for a second term of twenty-one years before this action was brought, and they have no longer any right to the possession either at law or in equity.

Should it be conceded that the defendants were entitled to a renewal of the lease in 1835, their remedy would either be in a court of equity for a specific performance of the contract, or by an action at law to recover damages for a breach of the covenant. TheJegal title is in the plaintiff, and nothing can be better settled than that in the action of ejectment, the legal will prevail over an equitable title.

It is not necessary to inquire whether the defendants were entitled to notice to quit, as no such question was made on the trial.

Judgment affirmed.