Lead Opinion
On the áth day of September, 1913, the plaintiffs filed a petition in the district court in and for Des
Defendant, for answer, admits the execution of the lease, but alleges that, at the time the lease was made, the plaintiffs had both actual and constructive notice that partition proceedings were pending with reference to the
The plaintiffs, for reply, admit that they had notice of the partition proceedings pending in the district court, but aver that they were orally assured by the defendant that said proceedings were merely formal, and for the purpose of ascertaining and fixing the value of the real estate, and that she and the other joint owners, her brothers and sisters, would purchase said premises at the partition sale, and that said partition would in no manner interfere with the lease, or with plaintiffs’ peaceable .possession of the property under and by virtue of the lease. Plaintiffs further allege that the defendant was one of the devisees under the terms and provisions of the will of Susan Say-den, and as such, was competent to take possession of the real estate; that she was also trustee for one of her sisters, to whom one fifth of the estate was devised, including the property in controversy. Plaintiffs deny that they had knowledge that, .under said partition proceeding, they might be expelled or ousted, and aver that they were told
Upon the issues thus tendered, the cause was tried to a jury'and a verdict returned for the plaintiff. Upon this verdict, judgment was entered, and defendant appeals, and assigns error. Under “Brief of Points Relied on for Reversal,” the defendant says:
“First. A lease may be mutually surrendered by the action of the parties.
“Second. Oral testimony is admissible to show the facts as they occurred at the time of the signing of the lease.
“Third. Where a party is acting in a representative capacity, and all the .facts as to the capacity are known, he will not be bound personally.
“Fourth. An executor or administrator, in the absence of other heirs, has the right to rent and lease, and, having such authority, cannot be held personally liable.
“Fifth. A warranty will not be implied in a deed or a lease unless some words of warranty are niade use of, particularly if all the facts are in the contemplation of the parties at the time, in which event it is subject to outstanding equities.
“Sixth. Interest should not be allowed on an unliquidated demand.”
As to the first point under brief of points relied upon for reversal, we have to say that the question as to whether there Avas a mutual surrender of the lease by the parties was .a question of fact, and was fully and properly submitted to the jury, and, as there is a dispute in the evidence, we will not review their finding.
As to the second proposition, all the testimony was admitted that was offered, showing, or tending to show, all that was said and all that occurred at the time of the signing of the lease, and all facts touching the knowledge
There are well recognized exceptions to this general rule. These exceptions are set out and exemplified in Thilmany v. Iowa Payer Bag Co., 108 Iowa 357, and require no further exemplification at our hands.
These general rules touching agency and the liability or non-liability of an agent are not controlling in a case such as we have here presented. Agency implies that there is a principal for whom the party is an agent. In the instant case, the property was the property of Susan Hayden at the time of her death. She left five children, and a will, in which she bequeathed her property in equal shares to her five children. Defendant was one of the children. The real estate in controversy passed under the will to these children in equal shares. Defendant had an undivided one-fifth interest in this property at the time the lease was made; was a tenant in common with the other heirs; was trustee for one of the heirs. Prior to the making of this lease, she had taken possession of this property and rented it and collected the rents, and, we must presume, accounted to the proper parties for the rental collected. She was one of the devisees of the will present and able to take possession, and had a right to the possession and control of the property as tenant in common with the other devisees. As executrix, therefore, she had no authority to take possession of this real estate, or to collect the rents and profits. Section 3333 of the Code, 1897, provides :
“If there is no heir or devisee present and competent to take possession of the real estate left by the decedent, the executor or administrator may do so, and demand and receive the rents and profits, and do all other acts relating*240 thereto which may be for the benefit of the persons entitled to the same.”
The defendant in this case was a part owner of the property, a tenant in common with the other heirs; was in possession of and controlled all the property, presumably with the consent of the other devisees; had rented it prior to the making of this lease, and collected the rents and profits. However, that she assumed to act for the estate does not add to or take from her authority. It is not claimed that, in any controversy she had with the plaintiffs prior to the time of the making of the lease, she claimed or said to them that she was acting as executrix of the estate. Nor does it appear affirmatively from the record that she was acting as executrix of the estate at this time, except as it may be inferred from the fact that she attached the word “Ex.” to her name in signing the lease, and to her name as it appears in the granting clause. She testifies: “I collected the rents. I rented the buildings. I executed leases when Ave needed them” — all prior to the time when the lease in controversy was made by her. She further testifies that, when she heard that Cohen would rent the property, she went to him and talked about fixing up a lease. She said: “There is a partition sale of the building. Do you knoAV that?” They both appeared to know this. She said:
“ ‘Well, I have to write to my brother and find out about making the lease. He is the other executor.’ Then I said: ‘You had better wait until after the partition sale, and then you can move in. I would prefer to make the lease afterwards.’ They didn’t want to wait. I said, ‘I will make a two years’ lease with you.’ They said it might just as well be three. I said, T will write to my brother and find out about it.’ ”
She testifies further that, upon the suggestion of the party, she telegraphed her brother; that her brother an
Plaintiff testified that, at the time the lease was made, and at the time the partition sale was discussed, defendant told him that the devisees would not let the building go from them; that they would buy it in. Defendant testified that she said to him that they would try to keep the building in the family. In subsequent conversations, she said, when the question was discussed:
“I said I didn’t think that the Hayden heirs would let that building go out of the family. I didn’t think that there would be anyone to bid against us.”
She further testified:
“At one time, I told him that I thought there would not be any individuals who would want the building, because they would want to buy a new building, with modern improvements, if they had the amount of money necessary to buy the building. After the lease was executed, we discussed the lease. I told them it wasn’t good. He always 'seemed to think it was all right.”
She further testified:
“At the time the lease was made, I told Cohen I didn’t think the Hayden heirs would let the building go out of the family; that I wanted it kept in the family, and that the rest of them wanted it — every one of them.”
In Peoria Steam Marble Works v. Hickey, 110 Iowa 276, it was said:
“An executor or administrator cannot, in the absence of authority given by the will of the decedent, or by statute, make an executory contract binding on the estate he represents. If he assumes to make such contract on a new and*242 independent consideration, it is his personal obligation, and he will be bound thereby, although the debt was incurred for the benefit of the estate (citing authorities). Another general rule is that, when an agent contracts without authority, or assumes to have authority when he has none, or for any reason fails to bind his principal, he is himself bound.”
Referring to Winter v. Hite, 3 Iowa 142, the court proceeds to say:
“It is there said that contracts with executors, etc., should not be confounded with those entered into by agents. The plain reason for this distinction is that there is no principal to be found. A trustee, guardian or executor is not the agent or hand of the court concerning those contracts that he has no authoxfity to make, but acts on his own responsibility, and is individually liable to perform them. * * * If it is not the contract of the individual, it is -no contract.”
In Winter v. Hite, supra, it is said:
“If it does not appear upon the paper that he acted as agent, or if he had not authority, he renders himself personally liable. * * An executor, administrator, or guardian is not an agent in any such sense as above indicated. He is so in a general sense, it is true, but his virtual and real character is of another class. With him, it is not a mere question of fact whether he have authority, for there is no one to give it, but it is a question of law, and the law dexxies the authority.”
As sustaining the proposition that the administrator of an estate or an executor has nothing to do with real estate unless expressly authorized by the provisions of the will, and that the title and right to the possession pass immediately to the devisees named in the will, see the following authorities, bearing more or less upon the question: Gray v. Myers, 45 Iowa 158; Hodgin v. Toler, 70 Iowa 21;
We are not prepared to say that being advised of a pending proceeding that might affect the power to give possession is “wholly” immaterial. It might be material on the question of whether certain damages may be allowed. But the record here is such that we do not have the question for decision. On that record, the instruction cannot be held erroneous.
This brings us to the fifth proposition: Is there implied in the lease a warranty of quiet enjoyment? Upon this proposition, we are not without authority. In Kerr on Real Property, Vol. 2, Section 1213, page 1065, the author says:
“The covenants usually implied on the part of the grantor are that he has a title, and therefore a right to make the lease, and that, in consideration of the rent to be paid him, the lessee shall not be disturbed in the possession by the lessor or those- claiming under him, during the term of the lease.”
“There is implied an undertaking on the part of the lessor that the lessee shall not be dispossessed or disturbed in his quiet enjoyment of the premises by the lessor, or by any persons claiming under him, or by anyone having the legal title or right of entry to the land (citing authorities). But there is no implied covenant to indemnify the lessee against the wrongful acts of a trespasser or other person, or against an action in ejectment brought by a third person not having legal title or right of entry.”
See also Pickett v. Ferguson, 45 Ark. 177; Shaft v. Carey, (Wis.) 83 N. W. 288; Kane v. Mink, 64 Iowa 84; Milheim v. Baxter, 46 Colo. 155 (103 Pac. 376, 133 Am. St. Rep. 50), and cases cited; Harmont v. Sullivan, 128 Iowa 309.
Clearly, there was an implied covenant for a quiet enjoyment in the lease in question, and this covenant was broken by ouster. It is the very meat of the contract; it is the very purpose, essence and spirit of the contract; it is what one agrees to give for the consideration to be paid; and it is what the other agrees to pay the consideration for.
Rehearing
Supplemental Opinion on Rehearing.
Anciently, estates were created by donation to the tenant, and thereupon, reciprocal relations arose by implication; from the tenant were due homage and feudal services, and in return, the donor or chief lord was bound to assure to the vassal the enjoyment of the estate. These duties were held to arise, however, not from express obligation or contract, but from the nature of the tenure. They were imposed upon the tenant by his acceptance of the estate, and might be exacted by the lord, who employed the term “dedi,” or other term of donation by which es-' tates were created. Lord Coke says: ¡
“Where dedi is accompanied with a perdurable tenure of the feoffor and his heirs, there dedi importeth a perdurable warranty for the feoffor and his heirs to the feoffee and Ms heirs.” 2 Inst. 275. <
Upon the enactment of the statute quia emptores, destroying the practice of subinfeudation, and cutting off the tenure, the correlative obligation of warranty could not be raised against the heir of the feoffor; but the feoffor himself was supposed ■ to be bound by his gift and the
Up to this point, there seems to be no- conflict in the authorities. This arises in determining whether a like doctrine is apxdicable to leases, and whether the use of certain words, as “demisi” or “concessi” is essential to the implication of a warranty of quiet enjoyment in a lease for a term of years. In Young v. Hargrave’s Admr., 7 Ohio 427, the court says:
“In leases for years, the case is different. They were not originally regarded as estates in the land, but as contracts for the perception of the profits. The possession of the lessee was not regarded as in his own right, but as the possession of the grantor, and the destruction of the freehold was attended with the destruction of the lease. The lessee had no means of redress or indemnity except upon the contract. The words of the lease, ‘yielding and paying,’ etc., were construed a covenant by the lessee to pay rent; and the words ‘grant, devise,’ etc., were held to imply a covenant on the part of the lessor to pay damages to tne tenant if the possession was lost. A warranty, therefore, is implied in a lease in a different sense from the implied*248 warranty of a freehold. The latter depends on tenure, the former on contract. The remedies, too, were originally different. In the latter, the disseisee recovered the value in land; in the former, damages only for the breach of the contract. Hence, a warranty is implied from any contract for the possession of lands amounting to a lease for years, no matter in what words it is framed; but the warranty of a freehold is not implied, except from the feudal term of donation.”
In Hamilton v. Wright’s Admr., 28 Mo. 199, the lease recites that “the said Wright leases unto the said Dilfey,'” and the court concluded that there was an implied covenant for quiet enjoyment, saying:
“It is almost an axiom in the law that the words ‘demist’ ‘eoneessi/ or demise and grant, in a lease for years, contain an implied covenant for quiet enjoyment, and that the lessor had power to demise; but it is insisted that no other words have that technical operation. In many of the early cases, which discuss the force of particular words on this subject, the leases were in Latin, and, as the words ‘demist’ or ‘eoneessi’ were always employed, it was only necessary to decide on the effect of these words; and as, in England, leases are drawn by professional conveyancers, who use established forms or follow stereotyped phrases that contain the words ‘grant’ and ‘demise,’ their courts have not been called on to decide whether other equivalent words would not have the same force and imply the same covenants. Whilst, therefore, the adjudged cases assume or decide that the use of the word ‘demise’ of itself implied a covenant, it cannot be inferred that no other translation of ‘demist’ has the same operation. The case of Lovering v. Lovering, 13 N. H. 517, is the only case we have seen which denies that such an effect can be implied from the words ‘let and lease,’ and the reasoning of the court is founded - solely on the absence of these words in the older cases. But*249 Rawle, in liis learned treatise on Covenants for Title, properly observes that the only difference would seem to be that they used the Latin word 'demisi ’ of which he thinks ‘lease’ is a fair translation; and the law now seems to be that the implied covenants arise, not from particular or fixed terms, but from the words of leasing. * * * The lessor must have intended that the lease should be beneficial to the lessee, and the latter had the right to require of his landlord that the quiet enjoyment of it should be secured to him against eviction or disturbance by his act or the act of those who claim under or paramount to him. (Smith, Land. & Ten. 262, 268.) We think, then, that the lease in this case contained a covenant for quiet enjoyment implied by law, which ran with the land, and for the breach of which an action accrued to the assignee of the term.”
In Maule v. Ashmcad, 20 Pa. 482, Black, J., thus states the court’s conclusion:
“It is not denied that the word 'demisi' in a lease implies a covenant for quiet enjoyment during the term. That word was not used here, for the lease was made by parol, and the parties did not understand Latin. But the word ‘lease’ is a fair translation of 'demisi,' and ought to be and is interpreted in the same way by the courts.”
Hart v. Windsor, 12 Mees. & W. 68, 85; Baugher v. Wilkins, 16 Md. 35; Wade v. Halligan, 16 Ill. 507; Ellis v. Welch, 6 Mass. 246 (4 Am. D. 122). A covenant for quiet enjoyment is implied in every mutual contract for the leasing and demise of land. Mack v. Patchin, 42 N. Y. 167 (1 Am. Rep. 506); Black v. Gilmore, 9 Leigh (Va.) 446 (33 Am. D. 253); Maxwell v. Urban, 22 Tex. Civ. App. 565 (55 S. W. 1124).
In Hanley v. Banks, 6 Okla. 79 (51 Pac. 664), the correct rule is thus laid down, as approved by Wood, Land. & Ten., Sec. 354:
“Although there is in this lease no express covenant*250 for quiet enjoyment, the law implies such a covenant from the contract of leasing. The rule is that whether a lease contains a covenant for quiet enjoyment or not is, so far as the rights of the tenant are concerned, immaterial, as, in all cases, unless otherwise expressly provided, the law implies such a covenant. A covenant for quiet enjoyment is implied in every mutual contract for leasing, by whatever form of words the agreement is made; and, for the breach of such covenant occasioned through the fault of the lessor, the lessee has his remedy for such damages as result to him therefrom.”
In a great number of cases, collected in a note at Section 79, 1 Tiffany on Landlord and Tenant, the law is assumed to be as above stated. A recent decision in England is to the effect that an undertaking for quiet enjoyment as against the acts of the lessor and those claiming under him is to be implied from the mere relation of landlord and tenant. Budd-Scott v. Daniell, 2 K. B. (1902) 351. It is said in Rawle on Covenants for Title, (5th Ed.) Section 274.:
“In the absence of words of leasing, as, for instance,where the lease is by parol, it is well settled that the law will imply a covenant for quiet enjoyment from the mere relation of landlord and tenant.”
This court so held in Harmont v. Sullivan, 128 Iowa 309. There is no reasonable ground for any other conclusion. One who rents or leases land or urban realty for a term at a stipulated monthly or yearly rental is as much bound to furnish the property for use during the term as the lessee is to pay the rent during such term. The use for the term is the subject of the contract, the thing negotiated; and the loss of this use for any portion of or all the period stipulated, through acts of the landlord or those claiming under him, or owing to a paramount title, would be a breach of his undertaking, regardless of the use of technical words,
There was no objection to the instruction on measure of damages prior to its being given, and for that reason, exceptions thereto cannot be considered. Section 3705-a, Code Supp.,. 1913.
We adhere to the opinion as originally filed, and the judgment of the district court is — Affirmed.