167 F. 399 | D.S.C. | 1909
The petitioner, Walter Pringle, filed his petition in this court December 30, 1908, setting forth, among other things, that he had been duly elected trustee of the above-named bankrupt December 28, 1908, and had duly qualified as such; that the principal asset of the said bankrupt estate consisted of a stock of goods, wares, and merchandise in the city of Marion, contained in a large, newly erected store or building in said city; that said stock of goods was entirely new, having been first opened about the 1st day of September, 1908; and the petition averred that said storehouse and building was built and fitted expressly for the use of the said business of the said Schwartzman, and was leased by the owner thereof, H. C. Graham, to said Schwartzman for the term of. one year from the 1st day of September, 1908, to the 1st day of September, 1909, with the privilege of certain annual renewals.
The petitioner further stated that he was advised that the owner of said property, the said H. C. Graham, claimed the right,to possession of the premises on the 1st day of January, 1909, and averred that irreparable loss and damage would follow if the stock of merchandise was removed from the premises before the sale could take place, and that the same could only be advantageously sold upon said premises, and that a sale could not take place at an earlier date than January 25, 1909.
Upon the hearing of said petition, which was duly verified, it was ordered that H. C. Graham should be restrained until - the further order of the court from instituting any action or proceeding, or taking any steps to interfere with the possession of the said trustee, and the trustee was ordered to file' with the clerk a bond in the sum of $1,000, with surety, conditioned to save the said H. C. Graham harmless from all costs and damages which might accrue by reason of the issuance of said restraining order. It was further ordered that the said H. C. Graham have leave to apply for a revocation or modification of this order at any time upon giving one day’s notice to the counsel for the petitioner.
Upon the facts stated in the petition, which was duly verified by the person known to Ihe court as a man of character and discretion, there can be no doubt that it was the right and duty of the court to grant the restraining order prayed for. The petitioner, but a few days before, had been selected by the creditors as trustee of an estate consisting of a stock of merchandise valued at $25,000, stored in a building specially built for the bankrupt, with fittings especially adapted, at considerable expense, for their proper display, and he was notified that the owner of the building would require him to remove the same within two or three days. It was obvious that great loss and damage would follow a precipitate removal. In- these circumstances it was the duty of this court as a court of equity, while giving Cull recognition to the legal right of the landlord, to so regulate the lime and manner of its enforcement as not to cause unnecessary loss to others. Immediate ejection from the premises would have entailed great depreciation of the value of the bankrupt’s estate, and, if the bankrupt had a lease of the premises for 12 mouths from September 1, 1908, as averred in the petition, it was the duty of the trustee to determine Whether or not it was for the benefit of the creditors to assume said lease. If a sale upon the premises was necessary to avoid great loss, it was obviously the duty of the trustee to conduct the sale there, and it seems equally clear that it was the duty of the court to relieve him
Upon the hearing of the motion to dissolve the injunction, affidavits were submitted which made it clear that the allegations’ in the fourth paragraph of the petition, that Graham had leased the premises to Schwartzman for the term of one year from the 1st day of September, 1908, to the 1st day of September, 1909, with privilege of certain annual renewals, were incorrect. There was no written lease for any period, and that brings up a very nice question, as to what Schwartzman’s rights were in the premises, for the trustee is entitled to them and no more. It appears that Schwartzman had been for some years a merchant in Marion, and that he conceived the idea of establishing a departriient store in that city; that Graham agreed to erect, and did erect, a building especially for that purpose, which was ready for occupancy about September, 1908; that on or before that day Schwartzman bought a stock of merchandise of the value of nearly $50,000; that he fitted up -this building especially' for that purpose, expending for fixtures alone what is now valued at $1,000; 3.nd that he entered into possession about September 1, 1908, and brought there a very large and valuable stock of merchandise, and that the building was admirably adapted for the proper display of such goods, and that there is .no building of like character in such city. Schwartzman became involved in financial difficulties in the autumn of the same year, and had been adjudicated a bankrupt. Upon his examination before the referee in bankruptcy, before this question arose, after testifying that this store had been built for him by Mr. Graham, he was asked:
“Q. How mueli rent do you pay? A. $00 per month. Q. How long did you agree to take it from him? A. 1-Ie did not give me any lease; he is a man who says, ‘Here is the store; take it; stay as long as you want.’ Q. He never told you to get out? A. 3STo, sir: I could stay there as long as I wanted.”
Affidavits have been submitted on this motion, from which it appears that Schwartzman desired a lease for five years, and that Graham refused to give him such lease, but let him into possession under an agreement that he was to pay $60 per month, and there does not seem to be any room for doubt that Graham understood that he was renting this building by the month at the rate of $60 per month, and Graham’s contention now is that he had a right to eject his tenant at the end of any month, with or without reason. That parties may make their own terms as to the tenancy of real estate
“that then anil there this deponent, acting as attorney or agent for II. O. Graham, entered into a. contract or agreement, the same being parol, whereby I). Schwartzman rented the. store in question at $(50 per month; that such was the whole contract or agreement, and nothing was said about renting for a year, 12 months, or until September 1, 1909.”
These affidavits were prepared to meet the allegations of the petition, which set forth a specific agreement of a lease for one year, from September 1, 1908. It will be observed in the affidavit of Graham’s attorney that, although he says that Graham would only lease by the mouth, in stating the contract he says that. “Schwartz-man rented the store in question at $60 per month; that such was the whole contract or agreement,” and nothing was said as to the duration of the lease. That Schwartzman understood that he was to stay as long as he wanted, paying <$60 per month rent, is clear from his testimony. This is in accordance with the probabilities. The store had been built for him especially by Graham. He was moving into it a large and valuable stock of goods; he had fitted it up at his own expense, at considerable cost, the fixtures alone being now valued at $1,000. It is incredible that a man of any common sense would make this large expenditure for fixtures, and would put into the building a large and valuable stock of merchandise, if he understood that he could be turned out at the end of a month. Graham had already shown his friendliness by erecting the "building for him, and evidently Schwartzmau trusted to the continuance of such friendly relations, and believed that he could stay there as long as he wanted to by paying the monthly rental.
T must conclude, therefore, that there was no definite agreement between Graham and Schwartzman as to the duration of the lease; that the only definite stipulation between them was the payment of $60 per month. That Graham believed that it was a rental from mouth to month, and that he had a right to eject his tenant at the end of any month, is not unlikely; but his understanding dries not suffice to make a contract, unless the other party agreed to the same thing. That Schwartzman agreed that he could be turned out at the end of any mouth, that his business should be broken up, and that the fixtures upon which he had expended large sums should be
“Tenancies at will, from which tenancies from year to year are derived, are said to have been originally, held by the will of the lessor; but from a very early period it has been the law that they were held at the concurrent will of both lessor and lessee — that they might be determined by the will of either party.”
Reference is then made to the third section of the act of 1817 (6 St. at Darge, p. 67), providing that:
“No parol lease shall give tenant a right of possession for a longer period than twelve months, and that all such leases shall be construed to be for one year unless it be stipulated for a shorter time.”
The court then adverts to the mischief that would follow if tenancies should be unexpectedly determined, and says:
“Ignorance and remissness would frequently leave one of the parties in the power of the other. The law which implies a tenancy for a definite period when it has not been agreed on by the parties, and requires notice to dissolve the tenancy, is best suited to the habits of society, and is necessary to prevent surprise and oppression.”
—and concludes:
“That in order to put» an end to a tenancy from year to year there must be three months’ notice to quit, ending at the expiration of the year.”
In Wilson v. Rodeman, 30 S. C. 210, 8 S. E. 855, the lease was verbal for $30 per month, but indefinite as to time, nothing being said as to how long it was to continue. The defendant entered into possession June 1, 1882, and paid his rent regularly every month. On October 1, 1884, the rent was raised to $40 per month, and the plaintiff claimed that at that time the character of the tenancy was changed by agreement, that thereafter it was to be a yearly lease, but this the défendant denied. On September 30, 1887, the defendant gave written notice that he would vacate the premises by the 1st of January, 1888, and he did vacate them before the beginning of the year 3888, leaving his rent unpaid for the month of December, 1887, and February 10, 1888, the plaintiff brought suit before a trial justice
“As we understand it, there are only two questions in the case, one offaefc as to the character oí the tenancy, whether it was indefinite as to its termination, and therefore from year to year, and if so, whether, as matter of law, (he end of the calendar year should be fixed for its termination. There seems to be no dispute that the first rental, in Juno, 1882, was indefinite as to time, except requiring the rent monthly: that under the statute was up to June, 1883, and, the defendant having held over, it became a tenancy from year to year.”
In Hillhouse v. Jennings, 60 S. C. 399, 38 S. E. 599, the court considered the statute of frauds in its relation to tenancies under parol leases, and reviewed the decisions, announcing the following conclusions:
•‘From the statutes and the decisions interpreting them, the following principles may be deduced:
“(1) A parol lease gives a tenant a right of possession for a term of 12 months from the time of entering on the premises. If the lease is for a term less (han 12 months, of course the tenant would only be entitled to bold possession tor the time stipulated after entering into possession of the premises.
•‘(2) A parol lease undertaking to give a tenant a right of possession for a longer term than 12 months is within the statute of frauds; nevertheless, if the tenant is permitted to enter on ¡.he premises by virtue of such agreement, he should have the right of possession for 32 months from the time of such entry, but no longer.
"(3» A parol lease under which a tenant enters upon the premises shall, after the term of 12 months from the time of entering on the premises, have the effect of an estate at will.
“(4) If a landlord refuses to permit a tenant to enter on the premises under a parol lease no action shall be brought to charge him upon such contract, even il: the lease is not for a term exceeding 12 months.”
Section 2416 of the Civil Code of 1902 of South Carolina, relating to landlord and tenant, is as follows:
“No parol lease shall give a tenant a right of possession for a longer term than 12 months from the time of entering on the premises, and all such leases shall be understood to be for one year, unless it be stipulated Lo be for a shorter term.”
My conclusion is that Schwartzmau, having entered into possession of the premises September 1, 1908, under a parol lease, and there being no express stipulation as to the duration of the tenancy, was entitled under the law of South Carolina to a right of possession for 12 months from the time he entered on the premises, and that the petitioner, Pringle, as trustee in bankruptcy of his estate, is entitled to hold the premises until September 1, 1909, paying the monthly rental of $60 per month, and motion to dissolve the injunction is denied.