Davis v. Spencer

3 Haw. 274 | Haw. | 1871

OPINION OP THE COURT, BY

HARTWELL, J.

We find the facts to be according to the documentary and oral evidence above stated, in which there is no conflict. The plaintiff took the deed of the land from his father with full knowledge of the prior lease then in force. This appears from the testimony of Green and from the evidence that he resided on the land, and jointly with Green and his father, occupied the premises for pasturage during the continuance of the lease, and for several years previous. Such knowledge is alone sufficient in equity to put a person on the inquiry as to the term of the occupancy. Cunningham vs. Potter, 99 Mass., 252. The plaintiff’s written acknowledgment of his father’s authority concerning the lease, made on the same day with the deed, is alone conclusive on the point of knowledge. Our statute of registry provides that leases for more than one year shall be recorded, or be “ void as against any subsequent purchaser in good faith and for a valuable consideration, not having actual notice.” Civil Code, Section 1262. Nothing in the statutes invalidates an unrecorded lease as against a subsequent purchaser with notice. We have not reenacted the third section of the English Statute of Frauds giving to deeds and leases not in writing, signed, &e., the effect of conveying only estates at will, but merely that '“no action shall be brought and maintained,” in such cases. “ unless the promise, contract, or agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and be signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized.” Ib., Section 1053. The consideration need not be expressed in writing, but may be proved by any other legal evidence. Ib., Section 1054. Hence a lease within these statute requirements is good against a purchaser with notice. This construction in equity, and finally in law, was judicially made in England and America, even before the clause excepting this class of purchasers was enacted. Dole vs. Thurlow, 12 Met., 164; Thompson vs. Blanchard, 3 N. Y., 337.

The rights of the assignees of a reversion to bring an action on the covenants or to claim a forfeiture on the breach of the covenants of a prior lease, and the rights of the lessor to re-enter after assigning the reversion, may not be clear under our statute. The common law did not allow a chose in action, as a right of entry, to be assigned. Hence when the Crown, in the time of Henry VIII, granted away the monasteries, the grantees found that they could sue in the name of the grantors for breach of covenants in the lease, but that neither they nor the grantors who had parted with the estate could re-enter and defeat the leases for breach of conditions. It was only by Statute 32, Henry VIH, c. 24, that grantees of reversions obtained the previous rights of action held by the grantors. It is unnecessary now to pursue this question further. In Brewer vs. Chase, at the July Term, 1869, it was, however, settled that our statute remedy to recover possession of land is cumulative to the previous remedy by ejectment.

But the plaintiff claims that if the first lease was good as against himself, the second is not, and that the substitution of the second lease works a surrender of the first, and further, that his consent, indorsed on the second lease, being without consideration, had no other effect, than to make the lessee his tenant at will or sufferance. This view is unsound for several reasons. A prior lease may be regarded as surrendered in law upon the mutual execution of a second, but this is only by reason of the intention of the parties themselves. It is absurd ,to suppose they intended to substitute a void for a valid lease. Schafflin vs. Carpenter, 15 Wend., 400; Flagg vs. Dow, 99 Mass., 98; Van Renssellaer vs. Penniman, 6 Wend., 569; Springstein vs. Schermerhorn, 12 John., 357. “Where parties enter into a contract which would have the effect of rescinding a previous one, but which can not operate according to their intentions, the new contract shall not operate to affect, the previously existing rights.” Noble vs. Ward, 2 Eng. Exch., (1867) 137. Moreover, the evidence shows a legal agreement between the plaintiff and lessee, on full consideration, that the latter should hold under the terms of the substituted lease. If we admit that no other consideration, such as the plaintiff’s acknowledgment of his father’s power to lease, can be shown for the deed than that which is expressed in the deed, or if shown that it could not affect the subsequent lease, it is a fair inference, and one that we can not avoid, that the plaintiff’s assent to the second lease was given on consideration of the advantages he would receive from its terms, which would give him rights of residence and pasturage not secured by the first lease, and of the receipt, jointly with his father, of §1,000, as rent under the second lease, given and accepted on the day it was executed. This was a legal contract, which binds the plaintiff to allow the lessee to hold under the second lease, but it gives him no rights as a lessor, and in no aspect of the case, does it make the lessee a tenant at will or sufferance.

Assuming that the grantor of the reversion could, by our law, take such steps as would defeat this lease for breach of condition to pay rent, so that the plaintiff would be entitled to treat the lessee and those holding under him as trespassers, let us inquire, (1,) whether there was a breach of condition, and (2,) whether legal steps were thereupon taken to work a forfeiture. Rent due and payable in advance September 24th, 1869, and again March 24th, 1870, was not then paid, but no demand therefor was made until the lessor’s letter of August 20th, 1870, delivered to' Green by Berrill previous to September 24th, then following, by his letter of September 19th, 1870, and by his agent Asegut’s letter of September 24th. presented to Green by Lett, October 1st. The second letter of the plaintiff refers to the previous bill sent by Berrill, hence no demand was made for the advance rent of September 24th until October 1st, when demand was made by an agent of whose appointment the lessee had received no notice from the lessor personally. The demands of August 20th and September 19th were certainly not made as the law requires, which insists that the demand be made at some time before sunset on the day the rent is payable. Chapman vs. Harney, 100 Mass., 353.

Besides, these demands were satisfied by the lessor’s' unconditional acceptance, October 3, of the rent accrued to September 24, which must be held to be a waiver of forfeiture previously claimed. Stuyvesant vs. Davis, 9 Paige, 427. There would be difficulty in holding the demand of October 1st, by letter of Asegut of September 24th, as legal, in point of time, precision, or due notice of Asegut’s appointment; but if we admit that this demand, under all' the other circumstances of the case, was sufficient, or that the lessée’s previous refusal to pay on the ground that he had assigned the lease, dispensed with the necessity of further demand, there is no ground on which a notice to quit, or some acts from which such notice can clearly be inferred, can be dispensed with. The estate held under a lease for years with provisions for re-entry and forfeiture on breach of covenant to pay rent, is a conditional limitation, which is defeasible at the lessor’s option, and is not aii estate determinable ipso facto, on such breach. Fifty Associates vs. Howland, 11 Met. 99; Attorney General vs. Merrimack M’l Co., 14 Gray, 584. Such an, estate is forfeited only on the landlord giving the tenant clear notice that he intends to claim the forfeiture, and at what time the tenant must quit, or become a trespasser. Brewer vs. Chase, ubi supra; Coke’s Lit., 218; Sperry vs. Sperry, 8 N. H., 481; Willard vs. Henry, 2 N. H., 122; Stone vs. Ellis, 9 Cush., 99; Arnsby vs. Woodward, 6 B. & C., 522; Oakes vs. Munroe, 6 Cush., 287; Sandford vs. Harvey, 11 Cush., 95; Elliot vs. Stone, 12 Cush., 176; Currier vs. Blake, 2 Gray, 224; Steward vs. Harding, Ib., 335; Leavitt vs. Leavitt, 47 N. H., 341; Mizner vs. Munroe, 10 Gray, 292; Beach vs. Nixon, 9 N. Y., 35; Jackson vs. Salmon, 4 Wend., 327; Jackson vs. Wilsey, 9 Johns,, 267. “It is clear that the notice must be such as the tenant may act upon with safety, that is, one which is in fact, and which the tenant has reason to believe, binding on the landlord.” Jones vs. Phipps, 3 Q. B., (1868,) 573. Would the lessee safely have acted on any notice from Asegut? It must be observed also that there was a joint occupation by the parties, so that there could be no actual entry by the lessor short of evicting the lessee. “When the party who is to perform the condition, and the party for whom it is to be performed, are jointly in possession, it is said that the latter must make claim for a breach by. acts and words, or either such as will distinctly admonish the granter that possession will be retained for the breach and not waived.” 1 Hillard’s Real Pr., 867, and see Rollins vs. Riley, 44 N. H., 13. Was the notice against trespassers posted in public places near the residence of the lessee’s agent or assignee, and published in the newspaper, sufficient to notify the lessee and those holding under him that a forfeiture was claimed? Clearly not. This general warning against trespass was served on no person; it was such a notice as either occupant might give during the tenancy without intending the other. Notice that a forfeiture is claimed should be brought home to the lessee, and we think it should also allow him a reasonable time to remove his property before being treated as a trespasser. See Pratt vs. Farrar, 10 Allen, 520, and besides previous citations,- 1 Am. Law Rev., 271; 1 Washburn’s Real Pr. (edit. 1868,) pp. 417, 421, 425; 1 Parsons’ Contr., pp. 503, 506, 514.

It is therefore ordered, adjudged, and considered by the Court, that the defendant to take judgment for costs and go without day.