Hamilton v. Wright's Administrator, 28 Mo. 199

Hamilton v. Wright's Administrator

28 Mo. 199 | Mo. | 1859

Lead Opinion

RichardsoN, Judge,

delivered the opinion of the court.

The words relied upon in this case as creating a covenant for quiet enjoyment are these: “ The said Wright hereby leases unto said Difley,” &c. It is almost an axiom in the law that the words “ demisi,” “ concessi,” 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 “ demisi” or “ concessi” 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 *206not been called on to decide whether other equivalent words would not have the same force and imply the sgme covenants. Whilst therefore the adjudged cases assume or decide that the use of the word “ demise” of itself implies a covenant, it can not be inferred that no other translation of “ demisi” has the same operation. The case of Levering v. Levering, 13 N. H. 517, is the only case we have seen, which denies that such an effect can be implied from the words'“ let qnd lease ,” and the reasoning of the court is founded solely on' the absence of these words in the older cases. But Rawle, in his 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, or, as Furlong expresses it, “ from the iase of words of demise in a lease.” (Furlong on Land. & Ten. 456 ; Maule v. Ashmead, 20 Pa. 482; Young v. Hargrave’s Adm’r, 7 Ohio, (Pt. 2) 63; Black v. Gilmore, 9 Leigh, 448.) 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.

The next question is whether the administrator of Wright is liable upon the implied covenant. It is said that as the lessor was only a tenant for life, the covenant was limited to the estate which he could lawfully grant, and that it ceased at his death because there was no longer an estate to support it. The two cases of Swan v. Scarles, Dyer, 257, and Adams v. Gibney, 6 Bing. 656, decide that if a person having only an estate for life makes alease for years, which contains the covenants implied from the use of certain words, and, *207after Ms death, but before the expiration of the term, the lessee is evicted by the remainder man, an action will not lie against the personal representative of the lessor, because “ the covenant in law ends and determines with the estate and interest of the lessor.” Conceding, however, to these cases the full weight of authority claimed for them, although they have been doubted, they do not govern or apply to the case under consideration, because it is clearly distinguishable from them. The principle on which they are founded seems to be that it will only be supposed that a party covenanted for what he could lawfully grant, and that the thing covenanted is within his power, or, as remarked in Bragg v. Wiseman, Brownl. 23, “ that a covenant in law shall not be extended to make one do more than he can, which was to warrant it as long as he lived and no longer.” But by the deed which vested in Wright an estate for life with the power of appointing by last will, the disposition of the property after his death was expressly conferred, so that he had the right and full power to make good the lease during the whole term, and to protect his lessee against any intrusion by the remainder man as effectually as if he had possessed an absolute estate in fee simple. The act necessary to secure the tenant in the full enjoyment of the leasehold for the full term of ten years was within his power, and as it was by his default that the lessee was injured, indemnity ought to be made by his personal representative. It is said by Judge Williams, in his notes to . the case of Holder v. Taylor, Hobart, 47, that if in such case the lease had been made by a tenant in tail, his executor would be liable; upon the principle, we suppose, that the tenant in tail can effectually dock the entail by a common recovery, and in this respect the analogy is perfect.

It may often happen that the application of the rule in Swan v. Searles will work no injury; for as the lessor is released from his covenants, the lessee will be discharged from the further payment of rent; but in this case the lessee was required not only to pay rent and all taxes and to keep the building insured, but to make lasting and valuable improve*208ments, which were to remain on the land to enhance the value of the estate, and under such circumstances it would be a fraud ón him to terminate the lease without compensation, and to sacrifice the improvements he had made. The principles involved in this case are treated in the text and elaborate notes of Rawle on Covenants (p. 472, 480 ; and we have thought it only necessary to state our conclusions, without reviewing the authorities which have been industriously collected and ably discussed by the counsel representing the parties in the cause.

In our opinion the demurrer was improperly sustained, and the judgment therefore will be reversed and the cause remanded.

Judge Napton concurs.

Dissenting Opinion

Soott, Judge,

dissenting. I consider that the word “ demise”- or “ grant” as alone being capable of raising an implied covenant on the part of a landlord in a lease. ' This I regard as the settled law, and do not feel myself at liberty to depart from it from any notions of justice or equity I may entertain in relation to the contrary opinion. It is the province of the courts to declare, not to make the law. It seems to me that a principle so well settled can not be overturned but by an act of the legislature. Many persons may have been advised and have drawn their leases in conformity-to the law as it was understood to be, and now to change it would be to subject them to damages contrary to good faith and the understanding of the parties. The idea of making-particular words, and them alone, imply a covenant, is not a novel one. Indeed it has long been found in our code. The words “ grant, bargain and sell,” by our statute create certain covenants. What would be thought of such a construction of the statute as would make any equivalent with raise the same covenants ? By a parity of reason, why why should they not do it ? When the common law among us is fixed and settled, courts have no more authority to disregard it than they have to disregard the statute law. If the common law declares that a particular word is necessary to *209imply a covenant, courts can no more say that an equivalent word shall have such an effect than they can hold that a word equivalent in import to a statutory word, which is made to create a covenant, shall have the force of the statutory word. The reasoning of the case of Frost v. Raymond, 2 Caines, 188, is strong in corroboration of the views here presented. It was there held that the words “ grant, bargain, sell, alien and confirm,” in a conveyance in fee, do not imply a covenant ; that it was implied by the word “ dedi” or “ give.” Chan. Kent observed, “ I am not able to assign a very solid reason for this distinction between the force and effect of the words £ give’ and ‘ grant.’ It arose from artificial reasons derived from the feudal law. The distinction has now become merely technical, but it is sufficient that it clearly exists and we are not certainly at liberty to confound the words or change their established operation. It is our duty to acquiesce in the law as we find it.”

The reversal of this judgment will in my opinion involve the violation of another principle of law as well established as any that prevails. To it there is no qualification or exception to be found in the books so far as I have been able to find. The principle is this, that an implied covenant determines with .the interest of the party out of whose estate it arises. Hence if a party take a lease for a certain term under an impression that the lessor is tenant in fee when in fact he is only tenant for life, the right of suing on that covenant will be' defeated by the lessor’s death, and the lessee left without remedy on eviction by the remainder man. Here the lessor or covenantor had an estate for life; he is dead, and,.even if there was an implied covenant, as the estate to which the covenant was annexed is determined, no action can be maintained against the lessor’s representatives. The authorities on this point all concur, and come down in an unbroken series from the earliest times to the present day. (Swan v. Stranham or Scarles, 3 Dyer, 257; Adams v. Gibney, 6 Bing. 156, 666.) I can not perceive how the principle can be affected by the fact that Christy, by a power of *210appointment, with which he was clothed, might have converted his life estate into a fee simple. He was under no obligation by contract to exercise that power; and how can his failure to do an act which he was not bound to do affect his rights ? In every case where the landlord fails to give a covenant for quiet enjoyment, he has it in his power to make good to the tenant any loss he may sustain by reason of his not having such a covenant. But will this ability affect his rights or change the nature of the liability he has incurred by reason of his contract ? I am aware of no principle by which such a result can be produced.

I am in favor of affirming the judgment.