201 Mich. 78 | Mich. | 1918
In this suit plaintiff Murphy seeks by injunction to restrain defendant Sayles from suing out a writ of restitution in certain summary proceedings wherein he had taken judgment, or otherwise interfering with Murphy’s possession of certain premises described as No. 5 West Western avenue, in the city of Muskegon.
His bill was filed on May 29, 1917, after Sayles had obtained a judgment against Murphy for restitution of said premises, in the circuit court of Muskegon county, affirming a judgment in summary proceedings begun before a circuit court commissioner in a case entitled Sayles v. Murphy, which was also appealed by Murphy to this, court and the judgment sustained in an opinion written by Justice Moore, reported ante, 73, to which reference may be made for a history of the litigation, with statement of the essential facts involved in both cases up to the time of filing this bill. In that case Murphy sought to defend his possession under a distinct claim of
On May 10, 1917, two days after judgment in the summary proceedings was rendered against him in the circuit court, Murphy thought he saw light in another direction, and proceeded to secure from Charles Tonnelier an assignment of the original ten-year lease given him by George McGowan, owner of the property. His attitude thereafter is thus stated by him:
“I claim I am the landlord of these premises and that Mr. Sayles is my tenant and that these assignments changed the relation so that I became landlord.”
Though in possession and use of the property, he then demanded payment of rent from Sayles, followed by notice seven days later of his election to forfeit Sayles’ lease, and on the same day filed this injunction bill to suppress further activity by Sayles in the summary proceedings.
To summarize briefly, the premises in question, known as the Lion Theater, were owned by George McGowan and leased to Charles Tonnelier for ten years by a conveyance containing authority to “sublet or re-lease,” which right if exercised should “in no manner release said second party from his obligation to pay rent,” etc. Tonnelier exercised this right twice, both times subletting the .premises to Sayles, first, by a lease of January 27,1914, for three years from Feb
Although subsequently taking the position that he never was a- subtenant of, or held possession under, Sayles, the testimony is convincing that Murphy recognized and admitted this at the trial of the summary proceedings in the commissioner’s court. Not only is there other testimony to that effect, but the commissioner who heard the case and took notes of the evidence testifies positively that Murphy so stated. His position in this case is that he never was a tenant of Sayles or held in subordination to him but bought him
“It was by virtue of that assignment from Victor L. Tonnelier that I continued to occupy these premises*83 and I have paid the rent during that time to Mr. McGowan.”
This is confirmed by McGowan, who testified that Murphy had paid him the rent every month from February 2, 1917, during which time witness recognized him as his tenant. To what extent McGowan’s lessee, Charles Tonnelier, was consulted in the matter, is not disclosed.
It is undisputed that no rent was due on the original ten-year lease from McGowan to Tonnelier when the first lease from Tonnelier to Sayles, under which Murphy took possession, expired on February 2; 1917. Sayles then held a second lease which entitled him to possession from and after February 2, 1917, vesting in him all possessory rights Tonnelier would have had if such lease were not given. Under it he was entitled to summary proceedings to recover the leased premises. Murphy refused to surrender and maintained possession, asserting an untenable claim of paramount right under a bill of sale of personal property, conferring no possessory rights in the premises, which he had secured by assignment from Victor Tonnelier on April 10,1916. He admits he knew of Sayles’ second lease as early as March, 1916. Of his reason for filing this bill and tenacity in retaining possession, he says:
“My business is a moving picture show and I run what are known as serial pictures which I have to contract for ahead. All pictures have to be contracted for of any consequence. If I vacated the premises I am in at the present time and started in again I could not by any means start with the same advantage in relation to my pictures as I now have. * * * I have been in continuous and uninterrupted possession of these premises in dispute since the 2d day of February last. * * * I have never surrendered possession or offered to surrender possession to Mr. Sayles of this property and I never intended to surrender possession until I was forced out.”
“Having obtained possession as tenant, he can do no act inconsistent with, or which would change the relation existing between himself and his landlord, without first yielding and delivering up to the latter possession of the premises which he acquired from him. The landlord has a right to rely upon the relation as a protection. To permit the tenant to do otherwise would be but holding out inducements to him to take advantage of his position for his own benefit and to the injury of his landlord. The law very wisely, therefore, holds all such agreements as being contrary to public policy and void, and sternly refuses to permit the person entering under such an agreement from obtaining any advantage thereby.”
But aside from this infirmity, conceding, for the purpose of the proposition, that, unhampered by the nature of his entry and continuous possession under it, Murphy has by his belated purchase of the original lease become Sayles’ landlord, with all the rights and
While retaining the exclusive use, possession, and enjoyment of the property to himself, and refusing Sayles’ right of entry on other grounds, Murphy was in no position to declare a forfeiture of Sayles’ lease for nonpayment of rent, without first tendering him possession on payment, and in the meantime an equitable suspension of payment arose against him.
Under the circumstances disclosed by this record, an equity court will not recognize or declare a forfeiture, and the decree rendered by the Muskegon circuit court, in chancery, dismissing plaintiff’s bill of complaint, is affirmed, with costs to defendant.