105 Tenn. 255 | Tenn. | 1900
This is an ejectment bill to recover a certain premises described in a lease of B. Vaccaro, executor of Paul Cicalla, to Samuel AVatson.
There is no contention that the lease has not expired, but a claim is set up for improvements made . on the property during the existence of the lease, and a right is asserted to hold the possession of the property until the improvements are p,aid for.
The Court below was of opinion complainant was entitled to recover the property on and after May 20, 1897, the date she reached twenty-one years of age, and that defendant has no valid claim or lien for improvements made as against complainant, and defendant’s cross bill was dis
‘The facts necessary to be stated are, that Paul Cicalla made his will, devising all his property to his three children, Aurelia, Parmelia, and De-lida, and appointed Bartholomew Yaccaro his executor, with very broad powers. The will is substantially as follows:
“I give, bequeath, and devise unto my three children, Delida Cicalla, Parmelia Cicalla, and Aurelia Cicalla, all my property ■ of every description whatever, real, personal, and mixed, choses in action, bank and gas stock, and every species of property possessed by, me of every nature and description whatsoever, to be equally divided between my said three children, share and share alike.
“I hereby name Bartholomew Yaccaro as my executor, having full confidence in his ability and integrity, and request him to accept this trust.
“I hereby, in this my last will and testament, ’ give him full authority to use, control, or dispose of my real estate for the benefit, of my three above named children, as in his judgment*258 may seem best for the best interests of the estate ' and of my children.”
Vaccaro, the trustee, made the' following leaser
“This indenture of lease, made this the 10 th day of January, A.D. 1882, between B. Vac-caro, trustee of the estate of Paul Cicalla, deceased, of the first part, and . Samuel Watson, party of the second part, both of Memphis, Tennessee, witnesseth: That the party 'of the first part, as trustee under the will of Paul Cicalla, deceased, probated in Shelby County, Tennessee,, hereby leases to the said Watson a lot of ground fronting on the south side - of Union Street, Memphis, Tennessee, about forty-two feet front, and east of Wellington Street, adjoining the-property of said Watson on the west side> running back south about four hundred and four (404) feet to the south boundary line, there being ' two tenement houses on ' the lot, numbered 233 and 235.
“Second: The duration of this lease is from the 1st of January, A.D. 1882, until either one of the devisees of Paul Cicalla, the testator, becomes of age or marries, it being pro*-vided in the will that the powers of the trustee 'over the estate shall cease, as to that devisee, on the happening of either event, and this lease is made under and subject to the powers of said will.
“Third: In the event of either devisee arriving*259 at age or marrying, and she and her husband consenting, then this lease is to he extended on the same terms until the second, or another, devisee arrives at age or marries, and in case, on the happening of that event, that both devisees and their husbands consent, then this lease is ' to be continued on the same terms until the last de-visee arrives at age or marries.
“Fourth: The consideration of this lease is an annual rent of two hundred and fifteen dollars ($215), to he paid hv the said Watson to the said trustee in quarterly installments, at the end of each quarter, and, in addition, the said Watson is to pay all taxes, State, county, and' municipal, and on his failure to comply with his covenants at any time within ay reasonable time, this lease may be forfeited by the party of the first part, or his successors, and all claims for improvements shall cease with the forfeiture.
“Fifth: The said Watson covenants to pay the rents and taxes aforesaid as- they severally fall due, and to keep the property and all improvements and buildings and fences thereon in repair, and so leave them at the expiration of the lease.
“Sixth: As to all permanent and valuable ‘ improvements made and put upon said lot of ground by the said Watson, and standing thereon at the termination of this lease, shall be valued by disinterested parties, one of whom to be*260 ■chosen by the party of the first ' part, or bis ¡successors, one by the party of the second part, •or bis successors or representing him in estate, .and the third chosen by these two, two being necessary to' a decision, and to the extent that ¡said improvements enhance the value of the property, the same shall be allowed and paid to the said Watson, or his representatives, by the ■estate of the said Paul Ciealla..
“Seventh: The alley on the east side of the lot, to the spring, is to be kept open so that the spring can be continued to be used as at present.
“Eighth: This lease is not to be in force until sanctioned by the Chancery. Court of Shelby ■County.
“Ninth: Said P. Yaccaro only acts as trustee under will of Paul Ciealla, and is not to be held liable in an individual capacity by reason ■of any undertaking growing out of this lease.
“Given under our hands and seals the date
.above written. B. Yaccaro, Trustee.
“Samuel Watson."
“Witness: IT. 0. King, Draftsman.”
Complainant, on June 19, 1897, served the following notice on the defendant :
“Memphis, Tenn., June 19, 1897.
“Austin Miller, Dsq., Oity :
“Deae Sib — You are hereby notified to vacate*261 and turn over to me my property, on the south side of Union Street, in the city of Memphis,, near the late residence of Samuel Watson, deceased.
“I came of age oh the 20th day of May, 1897, and claim the right to the possession, and to the rents and profits of the property from and after that date.
“Please advise me, also, of the nature and extent of your claim upon the property. Yours-truly, Deuda Cicalla."
The real questions of controversy arise under the sixth clause of this lease and the facts hereinafter detailed, and, incidentally, the second and third clauses are also involved. Vaccaro filed a hill in the Chancery Court to have the will construed and to obtain directions in the execution of his trust, in 1879. The lease was mad© pending this suit. This lease was approved by the Chancery Court in January, 1882. Watson thereafter erected improvements on the lot, and afterwards executed a deed of trust on the leasehold and improvements to Myers, as trustee, to secure a debt to Menken. This debt not being paid at maturity, the trust was foreclosed,, property sold, and Miller became the purchaser.
In the meantime Aurelia became of age, June 2, 1891, and married Aurelio Piaggio on the 18th of July, 1891, and thereupon these two filed
It is further insisted that, even if it is not a covenant running with the land, the estate of Paul Cicalla is bound, and that De-lida, being the sole party interested in that estate when she terminated the lease, is the representative of the estate, and must be held personally liable for the improvements, and, third, that in any event, having knowledge of the lease and having received benefits and continued the lease with knowledge, she is bound to pay. Attention is called to the use of the word “successors,” used in the sixth section, in which a provision is made for fixing the value of the improvements, and it is argued that the term “successor,” as applied to the trustee, means the party representing the estate, and not simply a successor as trustee, and that in this sense com
Counsel also • insists that, much consideration must be given to the intention of the parties, and it was clearly the intention that the covenant should run with the land.
We have recently had' occasion to consider very fully the question as to what covenants run with land and what do not, and to review the authorities in our own State and in others upon this question in the case of Doty v. Railroad, 103 Tenn., 564. Some distinctions between the cases are there drawn, but we are unable to distinguish .the present case from the cases there commented, on of Bream v. Dickerson, 2 Hum., 126; Hite v. Park, 2 Tenn. Ch., 374; Cronin v. Watkins, 1 Tenn. Ch., 120; Brooks v. Smith, 1 Shannon’s Cases, 158.
It appears that it was entirely optional with the lessee, under the terms of the lease, whether he would put the improvements on the lot or not. He was not obligated by it to do so-. The buildings were put on the lot after the lease was executed, and were not in esse at the time of its . execution. This brings the case clearly within the facts and reasoning of the Court in the case of Bream v. Dickerson, 2 Hum., 126, and makes the agreement a personal one against the estate of Ciealla as such, and not one run
ISTor can it be properly said that the complainant represents the estate of Paul Cicalla in the sense that she is individually bound for personal covenants made by his executor or trustee. These could not, under the will and terms of the lease, bind the estate as such after the first daughter arrived at age and the lease was thereby terminated, and certainly not after a partition of the property and allotment to each of her separate share, in which it appears no notice was taken nor allowance made for compensation for the improvements by complainants in *the allotment and valuation of her share. The estate of
We therefore see no error in the decree of the Court below, and it is affirmed, with costs, and the cause remanded for further proceedings.