Martineau v. Steele

14 Wis. 272 | Wis. | 1861

By the Court,

Cole, J.

My understanding of the agreement signed by the appellant is, that he was to pay all the rent which might become due upon the lease; for he says in that writing, “ I hereby take said lease, subject to the terms of the same, agreeing to pay rent at the times specified therein." Now, by the terms of the lease, the rent was to be paid on the 15th days of July, October, January and April follow-mon^,s ren^ was Pa^ ^e ex“ of tbe lease. But tbe appellant took an assignment of tbe lease and possession of tbe demised premises before any of tbe rent became due. It is said to be a general principle of law, that an assignee takes tbe thing assigned subject to all equities to wbicb tbe original party is subject, and must therefore perform all covenants wbicb are annexed to tbe estate and run with tbe land. Tbe payment of rent is one of those covenants, and tbe assignee, by accepting possession, renders himself liable therefor, though not named. Taylor’s Landlord and Tenant, § 437; 2 Platt on Leases, p. 402 ; Graves vs. Porter, 11 Barb. (S. C.), 592.

In tbe present case, however, tbe assignee, to place bis liability beyond question, agreed in writing to take tbe lease subject to its conditions, and to pay tbe rent at tbe times specified in tbe same. Tbe rent for tbe entire term was thereafter to become due, and although be did not enter into possession until a month or so after tbe commencement of tbe term, yet we cannot see upon what ground tbe appellant now can claim that be should be exonerated from tbe obligation be assumed. He saw fit to take tbe estate cum onere. It is insisted that tbe rent should be apportioned, and that be should only paj pro tanto for tbe time be occupied tbe premises. But this is not bis agreement. He agreed to pay tbe rent at tbe times specified in the lease. If be did so be must necessarily pay all tbe rent for tbe full term. If be did not wish to take tbe demised premises with this burden, be could have stipulated to pay only for tbe time be might actually occupy and be in possession of them. Such a stipulation would undoubtedly have been valid and binding between him and bis assignor. But be stipulated for no apportionment of tbe rent, but on tbe contrary, agreed to pay all wbicb might become due. This is my understanding of the written agreement.

We suppose there can be no doubt that it was tbe duty of tbe county court to construe this written agreement, instead of leaving tbe question as to its proper construction to tbe jury. Tbe jury, however, placed tbe true construction upon tbe writing — tbe one wbicb tbe court should have placed upon it; and therefore this error becomes immaterial, since it cannot have prejudiced tbe appellant.

The judgment of the county court is affirmed.

Dixon, O. J., dissented.