40 Vt. 478 | Vt. | 1868
The opinion of the court was delivered by
The right of the plaintiff to maintain this action qf ejectment depends upon the rights of the parties under the deed executed by the defendants John Hayes and his wife Mary Hayes, to the plaintiff, January 9, 1866. The action is to recover that portion of the premises conveyed by that deed, of which the defendants, Catlin and Gordon are, and since October 19th, 1866, have been, in the exclusive possession under a lease from the said John Hayes for the term of four years from October 19, 1866, the date of the lease ; Hayes and his wife,'the grantors in the deed to the plaintiff, having from the date of that deed continued to.reside, and still residing upon, and personally occupying, the other portion of the granted premises,
Incidentally in the course of the argument there has been some discussion of'the question whether this is to be regarded as a reservation or an exception. No time need be spent in tracing the line of distinction between a reservation and an exception, merely for the purpose of giving this provision in the deed a name; because whatever it may be called, it is a provision intended to secure a right in the grantors that otherwise would pass to the grantee by the deed, and we are not aware of any rule of law to prevent giving effect to it according to the intent of the parties, to be gathered from the nature of the subject matter and the language used.
It is insisted on the part of the plaintiff that the reserved right to use and occupy the premises is only a personal right, and that whenever; and so far as the grantors cease to occupy the premises personally, the reservation is to that extent at an end, and the plaintiff has a right to enter. There is nothing in the relation of the parties to each other, nor in their relation to the property, nor in the nature and character of the right reserved, that shows it to be a mere personal right. It is true the owner of the reversion in real estate, and a landlord in leasing such property, may have a choice in tenants. Some he may prefer an account of their habits of caution and prudence, in view of the manner in which they would be likely to use and occupy the premises. But considerations of this character are not deemed in law sufficient .to limit the tenant to a right of personal occupancy. A tenant has a right to occupy by himself, his agent or assignee, unless restrained by express stipulation in the lease. The word assigns is not necessary to give this right. So far as the nature of the right, and the relation of the parties to the prop
But even if the right is only a right of personal occupancy, the contingency has not happened upon which it was to terminate so as to give the plaintiff a right of entry, even as to the portion of the
It could hardly be claimed that if one only of the grantors had ceased to occupy the premises, it would terminate the reservation and give a right of entry, and we think leasing a portion of the premises, for a portion of the five years, can have no such effect. What the result would be if the right of occupancy were merely personal, and substantially the whole premises were thus leased, the part reserved trifling, and the transaction calculated to evade the provision, in reference to the termination of this reservation, we are not called on to decide.
Upon both these grounds the judgment is reversed and judgment for defendants.