27 Wis. 300 | Wis. | 1870
Lead Opinion
The following opinions were filed at the June term, 1869:
In the action at law between these parties upon the covenants of the lease for rent, or for use and occupation, I have stated my views upon the question whether the lease was extended for the term of ninety-nine years from the 8th of January, 1855, merely by the act of the lessees giving the notice that they elected to have the same extended or renewed for that period, or whether the instrument contemplated the giving of a new lease. It is probably only necessary to add here, that I adopt the latter construction, holding the contract executory in its character, and requiring the lessors or their assigns to execute a future lease.
In proceeding to consider the other points of the case, properly before us on-this appeal, it is obvious that the first and most important question is, as to the extent of the obligation assumed or imposed by law, by the covenant to renew, upon the assignee of the reversion. Does the covenant to renew or extend the lease necessarily imply that the assignee shall give a new lease containing all the covenants in the original lease for the full term of ninety-nine years, and render himself personally liable for the performance of these covenants, whether he retains the estate or not? Is this the extent of his liability in consequence of purchasing the property and by reason of the privity of estate existing between him and the lessees ? In this case these become very important questions, when we consider the fact that the lease is to be renewed for ninety-nine years, and that the
On the part of the defendant it is insisted that a covenant to renew the lease, even as between the original parties to the contract, is fully satisfied and performed by the covenantor executing a bare demise, without any covenants whatever. The cases of Willis v Astor, 4 Edw. 594, and Rutgers v. Hunter, 6 Johns. Ch. 215, are particularly relied on in support of this position. In Willis v. Astor, where the bill was filed by the lessee to enforce a specific performance of a covenant to renew, the question arose as to what covenants and conditions the new lease should contain. The lessor had tendered a lease, which, in addition to the covenant to pay the rent, also required the lessee to covenant to pay all taxes and assessments against the property, as in the former lease. Vice-Chancellor McCoijn held, that a covenant even to renew a lease did not necessarily imply a lease
But to what extent should the defendant be compelled to assume personal liability for the performance of these covenants ? For the solution of this question it is well to keep in mind the nature and character of these different covenants in the lease. The covenant to renew is satisfied as soon as the lease is renewed.
There is another fact which appears in the case, and that is, that the defendant conveyed the property to his sister by a deed bearing date April 5, 1866. It is said that this evidence should not have been received, although not objected to, for the reason that there was no supplemental answer setting it up. This may be so, but the fact is before the court that the defendant has parted with the title so as to be incapable of renewing the lease for the entire term. Can the court disregard that fact, and decree him to specifically perform a thing he is incapable of doing? Hall v. Delaplaine, 5 Wis. 206; Greenaway v. Adams, 12 Vesey, 395. The defendant might properly be required to execute a lease, with the covenants contained in the original lease, for the period the title was in him — that is, from January 8, 1855, to April 5, 1866- — so as to give the lessees a remedy upon it for any breaches occurring during that time. It is said that the conveyance from the defendant to his sister is a sham conveyance, made without consideration, and in fact never delivered to the grantee or any one for her. If the deed never was delivered, then the title still remains in the defendant. But if the deed did become operative and carried the title to the grantee, I do not understand that the lessees can impeach the bona fides of that transaction. I do not understand that there is any. principle of law or equity which requires the assignee of the reversion to hold the estate for the benefit of the lessee. It is also said that the decree will bind the grantee in that
I make these observations for the purpose of putting the court below in possession of my views. Owing to the disagreement between myself and the chief justice upon the main question, whether the lease has already been extended, no directions can be given. We both agree that the judgment should be reversed, but for quite different reasons; he, because he deems the relief asked unnecessary; and I, for the reason that the relief granted is too broad.
The judgment of the circuit court must be reversed and the cause remanded for further proceedings.
I have already fully expressed my views of the merits of this case iñ my written opinion in the case of Orton v. Noonan & McNab, just decided, which was an action at law to recover rents alleged to be due and unpaid upon this same lease. I hold that the lease was extended for the further term of ninety-nine years upon the lessees, the plaintiffs here, having signified their wish to that effect, as provided by the lease, and that no new or further lease was contemplated by the parties or can be required. This contest is, therefore, for a mere shadow, since the plaintiffs already have, and had before the filing of this bill, all the rights and title which they seek to obtain by it, or which could be given them were the prayer of the bill in this respect specifically granted. Inasmuch, therefore, as the primary and
If the main purpose of this action had been something different, as for example: if, proceeding upon the lease as an existing one, it had been to restrain the defendant from violating the covenants of the lease, and thus to secure, as has been said, a kind of specific performance of them, which courts of equity frequently do by injunction (see 1 Story’s Eq. Jur. § 721, and cases cited)- — then a different question as to the propriety of retaining the action might be presented. It might then be, perhaps, that the action should be retained, or the plaintiffs entitled to judgment for costs, notwithstanding it appears that the defendant has parted with his title to the premises. But as the case now stands, no reason is perceived by me why the action should be retained for any purpose. The damages to prevent which the injunctions were sought and obtained, as auxiliary relief, are transactions of the past, Eor such damages, whatever they may be, the plaintiffs have an adequate remedy at law, as the statute of limitations has not run yet. For them the plaintiffs may sue and recover upon the covenants of the lease; or they may set them up by way of defense to the action brought for the rents. The necessity for any injunction or for any equitable relief, as against the present defendant, is, therefore, entirely superseded; and there exists, in my judgment, no cause for retaining this suit. I think it should be dismissed.
By the Court. — Judgment reversed, and cause remanded.
Where there is a covenant for perpetual renewal, or the lease by its terms clearly indicates that it is to be perpetually renewed, or renewed more than once, not only the original lessor, but his assignee, even though a remote one, owning the premises when the time for a renewal arrives, is bound to make a new lease, and insert in it the covenant of renewal; and this is a personal covenant, binding on both the lessor and his assignee owning the premises at the time of the breach, and each of them is liable at law personally thereon. 1 Platt on Leases, 731, 732, and authorities there cited. These authorities show that when an assignee is decreed to make a new lease with covenant of renewal, he is personally liable thereon for the full term. If, then, an assignee of the lessor is bound in such a case to insert, on renewal of a lease, a covenant to further renew, on which he will be personally liable for a breach after he has parted with the estate, why is he not also to give a lease by which he will be personally liable on every other covenant therein run ning with the land, for a breach after he has conveyed the estate ? Is there any more reason for holding him personally liable in such case on a breach of the covenant to renew than on a breach of that to repair— both breaches happening after he had parted with the estate ? * * How can a lease with covenant for perpetual renewal be carried into effect without, at
In Furnival v. Crew, 3 Atk, 83, the suit was against the heir of the lessor; and it appeared that, as to a part of the demised estate, the he'ir did not have, by descent, a sufficient estate to support the lease. The court directed a renewal, with covenant of perpetual renewal, and other covenants; but Lord Hardwicke said: “ I do not say that the defendant is to insert the covenants verbatim, for, in forming the decree, he may be directed to covenant' as far as his estate will go, so as to bind himself and all parties claiming under him.” This doctrine of the right of the heir to restrict his covenants is recognized in Earl Brook v. Bulkeley, 2 Ves. Sen. 497; 1 Platt on Leases, 940. But these authorities are not to the point that even the heir may restrict his liability oh the covenants to the time he may own the estate, but only so that he shall not be liable on them for more than the value of the estate he inherits, or bind himself personally that the lessees or their assigns shall have the demised estate for a longer period of time than he inherited it for, or take a greater interest in it than descended to him. But even the heir was required to make a lease with cove-
But the extent of the liability of the lessor’s as-signee appears most clearly in Taylor v. Stibbert, 2 Ves. Jr. 437. There one Wood had made a lease of a greater estate than he had, and covenanted for a renewal, and then sold what estate he had to Stib-bert ; and the action was by the tenant against Stibbert for a specific performance of the covenant to renew. The Lord Chancellor, after remarking, in substance, that the lessor, if he had not assigned, could not interpose any objection to the renewal — that it was not competent for him to say that he had not a sufficient estate to support the estate he contracted to make, and that he was bound to procure such estate to the utmost of his means — said: “ The rule which affects the purchaser is just as plain as that which would entitle the plaintiff to a specific performance against Wood. # * ■ * The decree against Wood would have been specifically to perform his covenants — that is, to execute a new lease specifying the covenants in the former in totidem verbis. It is a fallacy to state that he is bound to a certain extent, and not to the whole. He either is not bound at all', or, if as standing in the place of Wood, the engagement can be neither greater nor less than that of the' person he represents. The plaintiff, being entitled to a specific, performance of a definite covenant to grant particular leases, has the same right
2. Lessees are - purchasers, against whose rights voluntary conveyances for nominal considerations are fraudulent and void. Furnival v. Crew, 3 Atk. 84; 1 Platt on Leases, 741, 742. The cases of Hall v. Delaplaine, 6 Wis. 206, and Greenaway v. Adams, 12 Ves. 395, contain nothing contrary to this. ■
3. Even if it be true, as held by the chief justice, that the lease was extended for ninety-nine years by the giving of the notice, the conclusion that the cause should be dismissed is erroneous. The bill still shows a cause of action against Orton for an injunction to restrain him from hindering the plaintiff from drawing 2,000 cubic feet of water per minute. 1 Story’s Eq. §§ 720, 721. The temporary injunction was by the judgment of the court below perpetuated, and this part of the judgment should be affirmed. The supplemental bill also stated a cause of action against defendant to restrain his prosecuting a certain suit against plaintiff’s agent, and also a cause of action for damages. The record (though not the printed case) shows that an injunction was granted, served on the defendant, and an injunction bond given. Testimony has also been taken, though not sent up to this court, to prove the damages alleged. The perpetuation of this injunction, and the issue as to damages, were reserved by the court below for trial at a subse
4. Counsel argued that the lease was not in fact extended by the mere act of the lessees in giving notice that they desired an extension; that this is not the usual mode of renewing or extending a lease for the period of ninety-nine years; that it is not correct to say that a new lease, if executed, would be “ in no respect more efficacious or obligatory” than the old, nor “the rights or liabilities of the parties either greater or less,” since the personal responsibility of the defendant would be substituted for that of the original lessors; that the lessors, as before shown, have the right in equity to compel such substitution (Earl Brook v. Bulkeley, 2 Ves. Sen. 497); that the language used in the lease in this case naturally imports an undertaking by the lessors to do some act upon the expiration of the four years, in case the lessees should give the required notice; that the lease having been executed in such a manner that it was not entitled to record, it cannot be supposed that it was the intention of the parties in case of a renewal for ninety-nine years to have the evidence of a demise for so long a period rest upon an unrecorded lease and a verbal notice; that it is not consistent with ordinary prudence for men to rely in such a case upon possession alone as notice of their rights, especially where both the dam and mill were liable to destruction (as both have in fact been destroyed), so as to leave no one in actual possession; that even if the four years’ lease had been legally recorded, the right of the lessees to an additional 1,000 cubic feet would have rested in a mere' verbal notice, without the execution and recording of a new lease; that Ranlett v. Cook being against
5. Counsel reviewed the former decisions in this cause (4 Wis. 835; 21 id. 289), and contended that the right of plaintiffs to a new lease was res adjudicata.
Rehearing
The motion for a re-hearing was disposed of at the June term, 1870.
It is argued, on the motion for a rehearing, that the supplemental complaints, one or more of them, are in the nature of bills to restrain the defendant from violating the covenants of the lease, and so to compel a performance of them; and that the action should be retained for the purpose of granting such relief in case the plaintiffs show themselves to have been entitled thereto. This is a point I have not examined, and do not decide. I wish to modify the opinion, therefore, so as to say that the action should be dismissed, unless it should be retained for the purpose of granting such relief — a question which is left open to future consideration,
By the Court. — Re-hearing denied.