270 Pa. 570 | Pa. | 1921
Opinion by
In January, 1918, the parties hereto entered into a written agreement by which plaintiff leased to defendants a certain seam of coal in five tracts of land, located in Addison Township, Somerset County, for a term of fifteen years, with the usual mining rights as therein specified. The lease provides, inter alia, that, “Lessees shall not transfer this lease nor sublet, sell or transfer the whole or any part of the leased premises.......without the consent of lessor in writing first had and obtained”; and, for certain designated violations of the lease, further provides, “and lessees hereby authorize any attorney of any court of record in the Commonwealth of Pennsylvania to appear and confess judgment against them in an amicable action of ejectment for the premises herein described, and hereby authorize the immediate issuing and execution of a writ of habere facias possessionem,” etc. In December, 1918, the lessor as party of the first part and the lessees as parties of the second part entered into an additonal agreement reciting, inter alia, the desire of the second parties to sublet the lease to Thomas F. Curry, and providing, “(1) That the party of the first part does hereby give its consent to the said sublease. (2) That the parties of the second part do hereby guarantee the true and faithful performance of the said agreement by the said Thomas F. Curry. (3) That in case the said Thomas F. Curry, shall have fully complied for a period of two (2) years with all the terms of said lease, the party of the first part agrees to release the parties of the second part and further agrees to a transfer of the said lease for the balance of its term, to said Thomas F. Curry.” Thereupon Curry went into
Appellants urge the general rule that where a tenant transfers the entire balance of his term it operates as an assignment, although designated a sublease. The rule is sound but does not apply where, as here, the parties stipulate otherwise. No transfer was here possible except by consent of the landlord, which consent it might give on such terms as it saw fit: Springer v. Chicago Real Estate Loan Co., 202 Ill. 17. As we interpret the contract of December, 1918, plaintiff therein consents to the sublease to Curry in consideration of defendants’ guarantee of his faithful performance of the terms of the lease for two years, and, upon compliance therewith, plaintiff agrees to a transfer of the lease for the balance of the term. The transfer, however, does not take place until the end of the two years, and then is dependent upon Curry’s faithful performance meantime. There is nothing indicating an intent to discharge appellants from the lease during the two years; hence, plaintiff was well within its rights in confessing judgment in ejectment against them for default occurring therein. Otherwise that remedy, expressly provided in the lease, is lost to plaintiff; for a judgment cannot be confessed against the assignee of a lease upon a warrant signed by his assignor: Ahern v. Standard Realty Co., 267 Pa. 404; Stewart v. Jackson, 181 Pa. 549. Of course such judg
The assignment of error is overruled and the order refusing to strike off the judgment is affirmed.