Cunningham v. Pattee, 99 Mass. 248

Cunningham v. Pattee

99 Mass. 248 | Mass. | 1868

Foster, J.

This is a bill in equity to enforce specific performance of a renewal covenant in a lease, the terms of which are the following: “ And the said lessors do promise to renew said indenture for such further term as their leasehold estate in the premises may be renewed or extended.”

1. The first objection to the plaintiff’s bill arises from the fact that the sublease to her was signed by only one member of the firm who were the assignees of the original lease from the owner of the estate. In the body of the instrument John C. Dalton and George D. Pattee are named as lessors; but it was executed by Pattee alone. Dalton & Pattee held jointly a lease of a larger parcel than that demised to the plaintiff; and shortly after the execution of the lease to her, Dalton assigned to Pattee all his interest in the original lease. The plaintiff entered upon the demised premises, under the lease executed by Pattee, and has ever since continued in occupation, paying the rent reserved, and performing the covenants of said lease. It did not purport to be a demise of the several interest of Pattee as one of two joint tenants or tenants in common, but was a lease of certain premises described as definitely as if they had been set out by metes and bounds, namely, store No. 262 Hanover Street.

A lease or deed, by one tenant in common to a stranger, of a *251portion of the joint estate, although voidable by the cotenants who do not join therein, is valid between the parties and against all persons unless so avoided. If the title of the cotenant entitled to disaffirm the conveyance becomes vested in the one by whom it was executed, the newly acquired title of the lessor or grantor will inure by estoppel to the benefit of the lessee or grantee. keay v. Goodwin, 16 Mass. 1. Rising v. Stannard, 17 Mass. 282. Johnson v. Stevens, 7 Cush. 431. De Witt v. Harvey, 4 Gray, 491. The words “lease, demise and let” amount to an implied covenant for quiet enjoyment at least against the lessor himself. Dexter v. Manley, 4 Cush. 14. And under the description of the premises in the lease, this covenant plainly applies to the whole store let, and is not limited to the undivided interest of Pattee therein. From these familiar principles it follows that, as soon as the title of Dalton was assigned to Pattee, it operated as a confirmation of the previous lease by Pattee to the plaintiff, whose rights as tenant were thenceforth as perfect as if her lease had been originally executed by both Dalton and Pattee.

2. It is unimportant to consider whether there is anything in the present case to vary the ordinary rule that a covenant to renew a lease is a covenant running with the land; because relief is sought by this bill against the very party who executed the covenant. It is the defendant George D. Pattee’s own contract, of which specific performance is demanded.

3. The next topic of inquiry relates to the connection of the' defendant Charles T. Stevens with the premises and with the present suit. The new lease to Pattee from the landlord who owned the estate was executed May 13,1867, and was guaranteed by Stevens. Previously, on May 1,1867, and pursuant to a verbal agreement in consideration of the proposed guaranty, Pat-tee leased to Stevens the part of the estate embraced in the lease to the plaintiff. On May 14, George D. Pattee leased all the premises demised by Gamage to him to Charles H. Pattee, and on the same date Charles H. gave Stevens a lease of the plaintiff’s portion. The fact is agreed that this must be treated as if made directly from the defendant George D. Pattee to the *252defendant Stevens. When Stevens took his first lease, bis lessor had no estate which he could demise; and he had received full and formal notice of the rights of the plaintiff in equity, before the renewal lease was executed by the upper landlord, and therefore before George D. Pattee acquired any title which could inure to the benefit of Stevens by way of estoppel.

The authorities fully support the doctrine in equity that one who purchases an estate, knowing it to be in the possession of a tenant, is bound to inquire into the nature of the tenant’s interest, and will be affected with notice of the extent thereof. According to this principle, the known possession of the plaintiff as tenant was sufficient notice to Stevens of the fact that she had a written lease, and of its contents, including the covenant to renew. The general rule is, that notice sufficient to make inquiry a duty is notice of all that by reasonable inquiry would have been ascertained. Adams Eq. 151. 1 Story Eq. § 400. Taylor v. Stibbert, 2 Ves. Jr. 440. Daniels v. Davison, 16 Ves. 249.

These considerations require us to regard the defendant Stevens as standing on no better footing than the other defendant, George D. Pattee, by whom the renewal covenant was made. We find nothing to distinguish the present case from the ordi nary one of a covenant to renew a lease sought to be enforced between the original parties thereto. The principles by which such a case is governed are established by numerous authorities.

4. The covenant to renew is not void for indefiniteness. The „ word, ex vi termini, imports the giving a new lease like the old one, with the same terms and stipulations; at the same rent and with all the essential covenants. Rutgers v. Hunter, 6 Johns. Ch. 215. Willis v. Astor, 4 Edw. Ch. 594. Carr v. Ellison, 20 Wend. 178. Piggot v. Mason, 1 Paige, 412. Tracy v. Albany Exchange Co. 3 Selden, 472. Whitlock v. Duffield, Hoffm. Ch. 110. Kelso v. Kelly, 1 Daly, 423. Price v. Assheton, 1 Y. & Col. Exch. 82. Rickards v. Rickards, 2 Y. & Col. Ch. 427, 428. To this rule there is one exception, equally well established with the rule itself. The renewal covenant is not to be inserted in the new lease; that agreement is satisfied and exhausted by a sin *253gle renewal. An agreement to renew toties quoties will not be inferred, in the absence of words clearly pointing to that intention. Hyde v. Skinner, 2 P. W. 196. Davis v. Taylors’ Co. 3 Ridgew. P. C. 395. Tritton v. Foote, 2 Bro. Ch. 636; S C. 2 Cox Ch. 174. Russell v. Darwin, 2 Bro. Ch. 638, note. Reece v. Dacre, 1 Hargr. Jurid. Arg. 438. Brown v. Tighe, 8 Bligh, (N. S.) 272, 290. Moore v. Foley, 6 Ves. 232. Iggulden v. May, 9 Ves. 325; S. C. 7 East, 237.

5. But the fact that the covenantor has himself taken a new lease at an increased rent, or upon more onerous conditions than the first, will not relieve him from obligation to fulfil his own contract; nor will it justify charging an increased rent, or imposing greater burdens on the sublessee than those contained in the first lease to him. Evans v. Walshe, 2 Sch. & Lef. 519. Thomas v. Burne, 1 Drury & Walsh, 657. Hackett v. McNamara, Lloyd & Goold, temp. Plunk. 288. Revell v. Hussey, 2 Ball & Beat. 280. The only way by which the obligation of such a covenant can be escaped is by the covenantor’s abandonment of the estate, without a direct or indirect renewal of his own tenancy.

Decree for the plaintiff for a renewal of her lease to expire with the present lease from Gamage, amd upon the same terms and with the same covenants as the plaintiff’s first lease, omitting the covenant to renew.