29 S.C. 544 | S.C. | 1888
The opinion of the court was delivered by
Some time prior to the 1st day of January, 1887, the precise date not being stated, the appellant and one II. C. Byrd entered into a written agreement, of which the following is a copy :
“The following agreement has been made between Mrs. C. A. Charles on the one part, and Mr. H. O. Byrd on the other
“1. Mrs. Charles agrees to rent to H. C. Byrd for five years from January 1st, 1887, her plantation on Back Swamp, except*549 twenty acres reserved for the use of Philip Backus, on the following terms:
“2. Mr. Byrd agrees to see that all land cultivated on the plantation is well cultivated and well fertilized, so as not to deteriorate in value, and all cotton seed made on the land are to be used in fertilizing it, so long as he rents it.
“3. Mr. Byrd agrees to carefully watch the timber and see that it is not wasted nor depredated upon, and the timber trees not cut for fuel, and no land shall be cleared without Mrs. Charles’s consent.
“4. Mr. Byrd agrees to keep the buildings in good repair, to keep the gin gearing protected from injury and from exposure to the weather, to build a gin house at some other place than the present one occupies, and at a sufficient distance from all other buildings not to endanger them or for it to be endangered by fire, at such place as Mrs. Charles shall prefer.
“5. Mr. Byrd agrees to build a house and start a settlement at such other place on the plantation as Mrs. Charles may prefer.
“6. Mr. Byrd agrees to furnish material, such as timber for frame, lumber (including a sufficient quantity for making necessary partitions and for ceiling overhead), and shingles, all to be placed by him on the site selected for a house, not to exceed in dimensions 36 feet by 46 feet, with a piazza in addition, als.o to have the necessary brick for two chimneys and pillars to the same'.
“7. Mr. Byrd agrees to plant, cultivate, and bank for Mrs. Charles a half acre in potatoes, and deliver the same as desired.
“8. Mr. Byrd agrees to deliver to Mrs. Charles each year twelve bales of lint cotton, averaging five hundred pounds each, packed and prepared for market, and delivered at Darlinuton C. H.
“9. Mrs. Charles agrees to allow Mr. Byrd to deliver to her every alternate bale of cotton, provided the crop will warrant the arrangement; but in no instance does she waive her right to the full amount of rent.
“10. Mrs. Charles agrees to allow Mr. Byrd the use (so long as he remains on the place) of the cotton seed out of thirty-two bales of cotton, averaging five hundred pounds each, returned to her by Mr. W. H. Rose, and at the close of his lease the same quantity of seed shall be left by Mr. Byrd.
“11. This lease is not transferable without Mrs. Chaides’s consent.
“Mr. Byrd agrees to send potatoes when he can conveniently do so.”
Under this agreement Byrd went into possession of the land,
At the hearing before the trial justice, counsel for Mrs. Charles was permitted to introduce testimony, objected to by counsel for respondent, tending to show that the lessee, H. C. Byrd, w-as possessed of peculiar qualities which rendered him an especially desirable tenant, with a view to aid the construction of the written agreement for which he contended, to wit, that it was a purely personal contract and terminated with the death of the said H. C. Byrd. Testimony was also received for the purpose of showing that after the death of H. C. Byrd the respondent had agreed to rent the premises for the balance of that year; but this testimony rested altogether in parol, as there was no pretence that there was any writing to that effect.
The trial justice rendered his decision as follows: “That on the day of , 188 , the said Caroline A. Charles and Henry C. Byrd entered into an agreement for the rent of the place of the said Caroline A. Charles for five years, commencing on the 1st day of January, 1887; that on the day of January, 1887, the said Henry C. Byrd departed this life, which, in my judgment, terminated and determined the said contract; that afterwards Sarah Byrd entered into an agreement with the said Caroline A. Charles for the rent of the said place for the balance of the year 1887, not as administratrix of Henry C. Byrd, but as Sarah Byrd personally and individually, and which contract terminated
Upon hearing the return to this writ, Judge Hudson reversed the decision of the trial justice, and rendered judgment dismissing the proceedings for the ejectment of the respondent herein, with costs. From this judgment Mrs. Charles appeals upon the several grounds set out in the record, which raise substantially the following questions: 1st. As to the nature and legal effect of the written agreement, a copy of which is set out above. 2nd. Whether the parol evidence offered on the part of appellant was competent. 3rd. Whether the alleged agreement by Mrs. Byrd to rent the premises for the balance of the year 1887 amounted to a surrender of the original lease. 4th. Whether the findings of fact by the trial justice should have been accepted as final under proceedings in certiorari.
It is quite clear that the paper in question must be regarded as a lease for a term of years, for it contains all the elements necessary to constitute such an instrument. The time of its commencement, its duration, and the amount of the rent reserved are all expressly specified in the paper; and by it the lessor divested herself of possession, and the lessee was let into possession under it. The very first stipulation is that Mrs. Charles “agrees to rent to H. C. Byrd for five years from January 1st, 1837,” the premises in question, and the paper, in two places, is expressly designated as a “lease.” There is not a word in the agreement which would indicate that it was a contract for the personal services of H. C. Byrd to be rendered by him to Mrs. Charles, on her plantation, under her direction and control. In this respect the case differs materially from Maverick v. Lewis & Gibbes (3 McCord, 211), where Hunter was the mere employee
If, then, this agreement must be regarded as a lease for a term of years, creating a leasehold estate, in the lessee, it is well settled that, upon the death of the lessee during the term, such estate vested in his executor or administrator, as the case may be, unless there is some provision in the lease stipulating for its termination upon the happening of such an event (1 Wms. JExors., *462); and this doctrine has been expressly recognized in this State. Payne v. Harris, 3 Strob. Eq., 39. It cannot be claimed that there is in this lease any express stipulation that it shall terminate upon the death of the lessee, but it is earnestly contended that such an intention must be implied from the terms of the agreement, looked at as a whole, and especially from the terms of the 10th and 11th clauses thereof. Looking at the provisions of this agreement as a whole, it does not seem to us that they are of such a character as necessarily to imply that the lessor bargained only for the personal services of the lessee, and that when he was no longer capable of rendering such services personally the contract should terminate. The character of these provisions are such as are not unusual in leases, the object of their insertion being to secure good husbandry and a proper care of the premises. The services stipulated for on the part of Byrd— to see that the land was well cultivated and fertilized, the cotton seed used for that purpose; to see that the timber was not wasted or depredated upon ; to keep the buildings in good repair and the gin gearing protected from the weather; to build a gin house at a sufficient distance from other buildings to be secure from fire “at such place as Mrs. Charles shall prefer;” to build a house
Nor do we think that the provisions in the 10th clause of the agreement that Byrd was to have the use of certain cotton seed “so long as he remains on the place,” and that the same quantity should he left on the place “at the close of his lease,” necessarily implies that the lease was to terminate upon his death. On the contrary, it seems to us that these two expressions — “so long as he remains on the place,” and “at the close of his lease,” taken together, as they should be, imply that as long as the lease continued, Byrd, or his executor or administrator, as the case might be, would be entitled to the use of the seed, with an obligation to return the same at the close of his lease. For, as we understand it, a lease for years to A, without naming executors or administrators, would, by operation of law, upon his death vest in his executor or administrator, and no words of limitation could alter the succession. “Thus if a lease for years be made to a man and his heirs, it shall not go to his heirs, but his executors.” 1 Williams on Executors, *464, citing Go. Litt.. 465. Hence this lease must be construed as a lease to Byrd, his executors or administrators.
We come next to consider the effect of the 11th clause of the agreement, which provides that the lease shall not be transferable without the consent of Mrs. Charles. It will be observed that there is no provision in the agreement by which the breach of any of its covenants shall work a forfeiture of the lease or determine its duration by limitation or otherwise, and therefore a question might be raised whether a failure on the part of the lessee to comply with any of the stipulations would work a forfeiture or operate as a limitation upon the duration of the lease, or would simply subject the lessee to an action for damages for a breach of his covenant. But waiving that question, and assuming that a breach of the provisions of the 11th clause, by an alien
In fict, the rule in England is that a covenant not to assign or transfer a lease is not broken by any alienation in vnvitnm, as by a decree in bankruptcy or by a judgment, unless it is shown that such alienation was procured by the voluntary act of the lessee, though the lessor may, by an express stipulation to that effect, provide, against even an alienation in invitum. Doe v. Carter, 8 T. R., 57; Seers v. Hind, 1 Ves., 294; Roe v. Galliers, 2 T. R., 133; Roe v. Harrison, Ibid., 425. And there is high authority in this country also for this doctrine. Jackson v. Corliss, 7 Johns., 531; Smith v. Putnam, 3 Pick., 221. Where, however, as in Doe v. Hawke (2 East, 481), a testator gave by his will his tenant-right, held under a lease, to A., “but not to dispose of or sell it; and if he refused to dwell there, or keep it in his possession,” then that the tenant-right should go over to J., and A. having borrowed money, left the title deeds with his creditor as a security, and confessed a judgment, and having also given a judgment to another creditor who issued execution, under which the sheriff sold the lease, and A. having left the place and ceased to dwell there on the day of the execution
So in Doe v. Clarke (8 East, 185), where the lease was for 21 years, “if the said T. Clarke and his executors, &c., should so long continue to inhabit and dwell with his and their family and servants in the said farm house, and he and his executors, &c., should so long continue actually to hold and occupy the said farm lands and premises, and not let, set, assign over, or otherwise depart with this present lease, or the farm and premises, or any part thereof, to any person whatever,” with a proviso that if any of the covenants should be broken, the lease should cease and be void, and the lessor might re-enter, it was held that upon the sale of the premises to a third person, under proceedings in bankruptcy, that the estate of the lessee, Clarke, terminated by the express terms of the lease, w'hich was in effect a lease for 21 years, if Clarke should continue to actually occupy the premises for that length of time, and that upon his ceasing so to do the lease terminated by its express terms.
Indeed, counsel for appellant concedes that in England, as well as in several of our sister States, the rule is that a covenant in a lease for years not to assign, is not broken by a transfer in invitum, as by decree in bankruptcy or by the death of the lessee, unless there is some express provision to that effect in the lease; but he earnestly insists that, as no rule upon the subject has ever been established in this State, we should not follow the English rule, but adopt one which would be more in conformity with what he claims to be the very different conditions which exist here from those found in England, in respect to the landed interest and agricultural condition of the two countries. His argument is necessarily based upon what we regard as the unwarranted assumption that the rule in England was derived from
So, too, in regard to any other mode of alienation or transfer in invitum, the law there, as Avell as here, contemplates the liability of every one to be overtaken by insolvency, which would result in the involuntary sale of his property, and hence a general stipulation in a lease not to assign is regarded there, and should be here, as a stipulation not to do a voluntary act — -a thing which he can refrain from doing, and not a stipulation that something over Avhich he has no control shall not be done. Such a provision in a lease is, and ought to be, regarded as a restraint upon the voluntary action of the party bound by it, and not as a restraint upon action over which the party so bound has no control. But if the lessor desires to prevent an alienation or transfer of any kind, whether voluntary or involuntary, it is perfectly competent, as it was held in Roe v. Cralliers, supra, for him to do so by inserting an express provision to that effect in the lease; but in the absence of any such express provision, a general covenant that the lease shall not be assignable Avill not be regarded as broken by an alienation in invitum, but only by a voluntary transfer. It seems to us, therefore, that the principles upon Avhich the English rule rests are equally applicable here, and that the rule itself should be recognized, here.
It is insisted, however, that the parol evidence which was ruled out by the Circuit Judge was sufficient to show “that in making this contract the lessor bargained for the exercise of the personal skill, judgment, and fidelity of. the lessee in the execution of his part of the agreement.” We must, therefore, consider the competency of such evidence. It seems to us that the only effect of. this evidence, if received, would be to incorporate additional stipulations into the agreement, which was in writing, whereby the lease should be forfeited or be terminated by its own limitation,
Having determined that the lease was neither forfeited nor terminated by its own limitation by the death of Byrd, our next inquiry is whether it was surrendered by his administratrix after his death. There is no pretence that the alleged surrender was made “by deed or note in writing,” and this would seem to be conclusive, for section 2018 of General Statutes provides as follows : “No leases, estates, or interests, either of freehold or term of years, or any uncertain interest of, in, to, or out of any lands, tenements, or hereditaments, shall at any time be assigned, granted, or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting, or surrendering the same, or his agent thereunto lawfully authorized by writing, or by act and operation of law.” So that accepting the finding of fact by the trial justice as final (which, we think, under the case of Slate ex rel. Sawyer v. Fort, 24 S. C., 510, the Circuit Judge was bound to do, under a writ of certiorari), to wit, “that afterwards (meaning after the death of FI. O. Byrd) Sarah Byrd entered
But if it should be contended that in analogy to the numerous decisions which have been made on the succeeding section of the statute of frauds (General Statutes, section 2019) in regard to contracts for the sale of lands, that they will be taken out of the operation of the statute by part performance of the contract, the answer is, that there was no such part performance here. Mrs. Byrd did not go into possession under the alleged contract to rent to her individually, but she merely retained possession of what had previously fallen to her by the death of her husband, and the rule is that the mere retention of a pre-existing possession is not sufficient. Poag v. Sandifer, 5 Rich. Eq., 179; Boozer v. Teague, 27 S. C., 348. Besides this, we do not see by what authority Mrs. Byrd could surrender a lease to her intestate and take one to herself “personally and individually,” for it is not to be supposed that she would take such lease unless she regarded it as an advantageous one, and this, as administratrix, she would not be authorized to do; for this would be allowing her to take advantage to herself at the expense of the estate committed to her charge. So that, in no view of the case, can the alleged surrender be regarded as valid.
The only remaining question is, whether under a writ of certiorari the Circuit Judge could review the findings of fact by the trial justice. As we have already said, upon the authority of the case cited, we think he was confined to a review of errors of law only; but this question becomes immaterial in this case, because, as we have seen, that even accepting the findings of fact by the trial justice, the conclusion as well as the judgment below was correct.
The judgment of this court is, that the order and judgmetit appealed from be affirmed.