2 R.I. 46 | R.I. | 1851
In pursuance of this deed, the defendants constructed the additional story and thenceforth used and occupied it.
The bill stated the succession of the City of Providence to the rights and privileges of the Town of Providence, and of the City Council to the rights of the Freemen of said Town; and that on ____ day of ______ 1850, the said council thought it proper to take said story into their possession, and passed a vote to that effect; that the plaintiffs requested a delivery of the story and offered to pay the value of the same, according to the provisions of the deed, and requested the defendants to join with them in appointing appraisers who should appraise the value thereof; and that the plaintiffs proposed to the defendants that they should choose one appraiser, and the plaintiffs another, and that the two so chosen should choose a third, the appraisal of which three or any two of them should be final and binding upon the parties; and that they offered to assent to any other fair mode of making an appraisal of said story and roof, according to the provisions of said deed; with which requests and proposals the defendants refused to comply.
The prayer of the bill was that the court would ascertain by themselves or by some persons by them appointed the value of said story and roof; or would appoint suitable persons as appraisers to appraise the same, or would order the defendants to choose an appraiser, who, with an appraiser to be chosen by the plaintiffs, should choose a third, the appraisal of which three or any two of them should be taken to be the true value of the same, or that the court would ascertain the value in any way which they should deem meet; and for a decree ordering the defendants, upon payment of the sum so appraised, to deliver said story and roof into the possession of the plaintiffs. *49
The defendants demurred to the bill generally for want of equity. The first question in this case arises upon the construction of the grant. The defendants' counsel contends *54 that the words of the granting part of the deed, if contained in a deed to an individual, would convey a life estate, but the deed being to a corporation, they convey an estate for the life of the corporation, in other words, a fee, and that the habendum being contradictory to the grant, as thus construed, is void.
The city grant to the Lodge the right to build, but the right to occupy is not granted in this part of the deed unless it be by implication.
And this implication is rebutted in the clause immediately following, which grants the incidental right to pass through the Market House, in order to erect the story, but for no other purpose. Now, if the intent of the parties had been, under the express grant of a right to build, to convey by implication a right to occupy, they would have made the incidental right of passage through the Market House commensurate with the principal grant. The limit which they put on the grant of the incidental right defines the extent of the grant of the principal right.
And this view is confirmed by the language of the habendum, which contains an express grant of the right to occupy. It can hardly be supposed that the parties intended to leave to implication from one part of the deed, what is expressly granted in another part.
And this express grant of the right to occupy is accompanied with a grant of the incidental right of passage through the Market, restricted to purposes of occupation only, thus showing that the parties intended to leave the right to occupy upon the express grant in the habendum, and that no implication of such right was intended to be raised from the grant of the right to build, in the previous part of the deed. *55
The habendum in this deed is peculiar. Ordinarily, this part of the deed does not purport to grant, but to define what has been before granted. The habendum of this deed is as follows: "And having so erected and constructed said story, to have, hold, use, occupy, c., the same." The words, "to have, hold, c.," are connected with the previous words, "grant and confirm." The Town grant to the Lodge the right to build, and, having built, the right to occupy the same.
The construction contended for by the defendants' counsel annihilates the last clause in the deed. And then, it may be asked, what becomes of the right to pass through the Market House, in order to occupy, the grant of this right being in that part of the deed which, upon the argument of the defendants' counsel, is void.
We think the deed grants two things, first the right to build, next the right to occupy. This is done by distinct clauses which harmonize with each other, and to each of which full effect can be given by a plain and reasonable interpretation.
By the terms of the deed, whenever the freeman of the town shall think proper to take possession of the story, it shall be lawful for them so to do, upon paying to the Lodge for the same and the roof the value thereof, at the time of taking the same into possession, as the same shall be appraised, without regard to the central situation thereof.
The bill alleges that, by the charter of the city of Providence, the plaintiffs have succeeded to the rights of the town of Providence, and, by the same charter, the City Council of Providence have succeeded to the rights and privileges of the freemen of the town of Providence, and it, therefore, devolves upon said City Council to decide *56 when it should be proper for the plaintiffs to take said additional story into their possession, according to the provisions of said deed.
It further alleges that on the day of A.D. 1850, the said City Council did think it to be proper for the plaintiffs to take said story into their possession, and did pass a vote to that effect, and that the plaintiffs were then and always have been ready to pay the value of said story and roof, according to the provisions of said deed, and have requested the defendants to deliver to the plaintiffs the possession of said roof and story, and have offered to pay them the value of the same, according to the provisions of said deed. The bill, after stating an offer of one made of selecting appraisers, alleges that the plaintiffs had offered and were ready to agree upon any other fair and impartial mode of obtaining an appraisal.
It is said by the defendants' counsel, the offer to pay does not appear to have been made by persons authorized to make it; but we think on general demurrer the allegation is sufficient.
The counsel for the defence contends, that this is a bill to enforce performance of a contract of sale, and that the contract cannot be enforced, because no price is agreed upon.
It is undoubtedly true that a Court of Equity will not enforce a contract of sale, where the price is to be fixed by the parties or by arbitrators to be chosen by the parties; and for the plain reason, that the contract sought to be enforced is incomplete in an essential particular, and the court have no power to substitute themselves or a master to fix the price, in the place of the parties or of arbitrators to be chosen by the parties. This would be *57 not to enforce an existing contract of the parties, but to make one of them. 2 Story's Eq. Jur. § 1457; Cooth v. Jackson, 6 Vesey, 11; Milnes v. Gerry, 14 Vesey, 407; Agar v.McKlew, 2 S. S. 418.
This argument assumes that, by the true construction of the deed, the appraisers were to be chosen by the parties. If they so intended, it is somewhat singular, the mode by which the choice was to be made had not been provided, so that an appraisement could be made. They have been careful to fix the principle on which the appraisement is to be made, that is, the value at the time of taking possession, and without regard to the central situation of the building, but leave everything unsettled as to the mode of selecting the appraisers.
We think the parties have agreed to an appraisement, and, whether made by appraisers chosen by themselves or appointed by the court, it is equally an appraisement in the sense of the contract. We think the language of the present deed is of the same import as to pay at a valuation or fair valuation, which is the same thing. Appraisement is fixing the value, and when the agreement is to pay the value as appraised, and no mode of choosing appraisers is agreed upon, and there is nothing in the contract to show that the choice of appraisers was to be made by the parties, we think it is the duty of the court to ascertain the value by appointing appraisers.
In Morse v. Merest, 6 Madd. 25, Sir John Leach says: "It is to be observed, a covenant to pay for land by valution implies the intervention of others as appraisers, and the appropriate tribunals may reasonably be resorted to, when the parties have not named them.
In Wilkes v. Davis, 3 Merivale, 509, Lord Eldon held, that when the parties have agreed as to a valuation, but *58 have not appointed any persons to make the valuation, the court will itself interfere, so as to ascertain the value in order to direct a specific performance.
The same doctrine is recognized by Sir William Grant, inMilnes v. Gerry, 14 Vesey, 407; and by assistant Vice Chancellor Hoffman, in Whitlock v. Duffield, 1 Hoffman, 130. So also in Gaskrath v. Lowther, 12 Vesey, 106, the court appointed a master to make a fair valuation, the offer being to sell at a fair valuation.
We have adverted to these authorities to show that if the present case was a contract of sale upon the language of this clause of the lease, the court would be bound to appoint appraisers to estimate the value.
It is further contended by the counsel for the defendant, that as a contract of sale it is void for want of mutuality, the lessors having their option to take possession when they choose, and the lessees being obliged to sell when the lessors elect to take possession.
The improvements in this case are not buildings, which can be moved off by the lessees at the termination of the lease. The roof and story, which have been put on the market house, are inseparably affixed to the building and cannot be severed from it. The title to these improvements necessarily vests in the lessors, as owners of the soil and building, subject to the claim of the lessees for their value as the same shall be appraised.
This appraisement is not so much a proceeding to fix a price for a sale, as an assessment of the amount the lessees are justly entitled to for what they have put on the lessors' estate. The lessors, it is true, are not obliged to determine the lease until they choose to do so, and are not obliged to pay until they determine the lease.
But the right to take possession upon paying the appraisement *59 is reserved to the lessors by the lease, and is a condition which attaches to the title of the lessees, under which they have gone into possession and long enjoyed it. Having accepted the title and enjoyed the possession under it, they cannot now be permitted to say this condition is void. If they thought the provision unequal, by leaving it at the will of the lessors to pay and take possession, they should have refused to accept it.
It is to be observed, the lease is a deed poll, the lessees have not executed it, and it was not intended they should. They are under no obligation, therefore, except what results from the condition of the lease and their acceptance of it and possession under it.
The argument of the defendants' counsel, upon this part of the case, seeks to set up the provision so far as it bars the plaintiffs from possession until they have paid the appraisement, but repudiates it as void so far as it provides any mode by which the amount to be paid can be ascertained.
We do not think the case at all analogous to a contract of sale, in which A agrees to sell to B, but B does not agree to buy. Such a contract is entirely executory. In the present case the contract has been executed so far as the lessors are concerned. The lessees have been let into possession and have long enjoyed it. They cannot now be permitted to say that a provision in the lease, on the faith of which they have been let into and have enjoyed the possession, is void.
Demurrer overruled. *60
