148 Pa. 20 | Pa. | 1892
Opinion by
It is not doubted that the contract out of which the present controversy grew, gave the defendants an option for an additional term of four years ; nor that some kind of notice to the landlord of their election was necessary, on the one hand, to secure to them the enjoyment of the term, and, on the other hand, to bind them for the payment of the rent. But whether the mere continuance of the tenants’ occupancy after the expiration of the term certain was sufficient notice, is a question which does not appear to have ever been decided in this state. It is, however, well settled, that one who has a right of entry upon lands will be presumed to have entered in virtue of that right rather than as a trespasser: McMasters v. Bell, 2 P. & W. 180; Bannon v. Brandon, 34 Pa. 263. And it is equally well settled, that possession is, in general, notice of the title of the possessor: Jaques v. Weeks, 7 Watts, 261. But where a party, having two different titles, records one of them and withholds the other from the record, his possession is referable to, and notice of, only that one which is recorded: Plumer v. Robertson, 6 S. & R. 179; which is as much as to say that, where a party has a known title, his possession shall not be deemed notice of a secret intent to hold inconsistently therewith. In harmony with these familiar principles, the continuation of possession by the tenants would be clearly referable to their “ privilege of four years additional lease,” and could have had no other significance to the landlord. They had no other right to remain, because the last clause, providing for a tenancy from year to year, by its express terms, could not come into effect until after the termination of the contract, which included the “ four years additional lease,” and the landlord, having knowl
That a holding over by a tenant who has an option for an additional term is notice to his landlord of his election to exercise his privilege is generally held in this country : Kramer v. Cook, 7 Gray, 550; Kimball v. Cross, 136 Mass. 300; Montgomery v. Commissioners, 76 Ind. 362; Delashman v. Berry, 20 Mich. 292; Clarke v. Merrill, 51 N. H. 415; Holley v. Young, 66 Me. 520; Insurance Co. v. Nat. Bank, 71 Mo. 58; Long v. Stafford, 103 N. Y. 274; Terstegge v. German Benevolent Society, 92 Ind. 82. But it must be admitted that the courts of Indiana and Connecticut have recognized the distinction contended for by the learned counsel for the appellees, and held that the continued possession of the tenant and payment of rent, is not such notice of his election under a covenant for renewal as will entitle him to a new lease, or bind him for rent otherwise than from year to year, but that for such purpose actual notice must be given to the landlord at or before the expiration of the term certain. If it were important to inquire upon what this distinction is based, it might be difficult to find a reason for it, since the substance about which the parties contract is, in either ease, a term; in the one case, to be granted upon the election of the tenant by a new lease, in the other, to be held upon a like election under the original lease. In both cases the election of the tenant is effectual to vest in him a right to the term; notice of that election being given to the landlord. Why,
The plaintiff’s testator leased certain premises to the defendants, “ for the term of one year, from the first day of January, 1887, at the rent of $2,100, payable quarterly, with the privilege of four years’ additional lease, from the first day of January, 1888, at the same rental per annum.” The defendants covenanted that they would at the expiration of the term surrender possession of the premises; and it was “ further agreed that, if the above mentioned Seeley Brothers should continue on the above described premises after the termination of the above contract, then this contract shall continue in full force for another year, and so on from year to year, until legal notice shall be given for a removal.” Because the word “ lease,” used in the clause giving the tenants an option, is not the technical equivalent of the word “ term,” it seems to have been thought by the learned court below, as it has been argued here, that the parties must have contemplated the execution of a new lease in case the tenants should elect to hold four years longer-, and hence that the clause in question must be construed to be a covenant for such new lease. There would be much force in the argument, if, by so construing the clause, full effect could be given to that and every other clause in the lease, and if it were less usual in common speech to put, by a sort of metonymy, the instrument by which an estate for years is granted for the estate itself. This use, however, of the word “lease,” as descriptive of the estate or interest conveyed by a lease, is recognized by text writers: see Taylor on Landlord and Tenant, § 16; and it has crept into the statutes, as may be seen in the title of “ an act to authorize mortgages of coal leases in Schuylkill county,” which does not authorize mortgages of leases technically so called, but does authorize mortgages of certain estates held by leases; and, in the act of April 27,1855, P. L. 369, providing that certain lessees may mortgage their “ lease
The judgment is reversed and a venire facias de novo awarded.
