71 Vt. 430 | Vt. | 1899
In the lease of July 2, 1885, which is the foundation of the suit, the orator and the defendant Skeels are lessors, and The Highgate Driving Club is named as lessee, and as acting in the transaction by the defendants and Tuller, its directors. But the instrument is not the deed of the Club, for it is not executed in its name nor sealed with its seal, but is signed and sealed by the defendants and Tuller in their individual capacity only. The master has found on parol testimony objected to, that they in fact signed as directors and not otherwise, and were thereunto authorized, and that the orator so understood it at the
The defendant Skeels being both lessor and lessee in said lease, which is joint and not several, the suit is properly brought in chancery, for an action at law could not be maintained thereon, as Skeels would be on both sides of the record.
By the deed of March 31, 1890, whereby the orator conveyed to Marsh all his interest in that part of the demised premises called the Green lot, his interest in the lease as to that part, and a proportionate share of the rent, passed as an incident of the reversion, according to the'
At the-common law, by some modes of conveyance, the assignment of a reversion expectant on a term for years or for life, was incomplete without the attornment of the tenant. If he refused to attorn, he was not liable to the assignee for rent. But this principle was inconvenient, and a great clog upon transfers, as tenants would sometimes unreasonably refuse to attorn. To remedy this, the 4 Anne, c. 16, made assignments of reversions valid in all cases without attornment, but provided, for the protection of the tenant, that all payments of rent to the lessor before notice of the assignment should be good.
The doctrine of attornment was a product of feudalism, and sprang from the peculiar nature of the feudal bond. Attornment is not necessary under our system of conveyances, to complete the validity of an assignment of a reversion; and therefore, not being applicable to our situation and circumstances, that doctrine was not adopted by our statute as a part of the common law. And although the statute of Anne may not be in force in this state, yet, as the title of the assignee is complete without attornment, we hold on the ground of universal equity, as they do in Massachusetts, that he is entitled to all arrears of rent that accrue after the conveyance and are not paid to the grantor in default of notice, and no more; for if he lies by and suffers the tenant without notice to pay rent to the lessor as it falls due, he has no reason to complain. Indeed this seems to have been the common law when the grant passed the estate without attornment, as it
The orator cannot, therefore, recover any rent in arrear that accrued on that part of the demised premises deeded to Marsh, as it all accrued after the conveyance. It is unnecessary to inquire as to the efficacy of the actual notice from the land records, as no question is here involved as to rent already paid to the orator.
But as to the rest of the demised premises, which is a part of the farm mortgaged to the insurance company, the case stands on different ground. As the rent in question that accrued thereon, accrued after the company’s decree of
The defendants continued to occupy and pay rent until July 2, 1892, when they abandoned the premises on account of the character of the orator’s title, and refused longer to pay rent, and Skeels “took back” his portion of the land; and although he occasionally drove horses on the track that year and the next, it cannot be said, on the facts found, that he did it under the lease. As the orator’s new interest was sufficient while it lasted to feed the lease, the defendants could not during its continuance abandon the premises as they did, and their obligation to pay rent continued notwithstanding such abandonment. They could not by anticipation and because they feared, treat the lease as broken by the orator because his interest was not in the first instance sufficient in point of time to feed the lease during the remainder of the term, for he had not renounced the lease, nor was it out of his power to perform, for he was performing, and might continue to perform, for aught the defendants knew. They were bound, therefore, to wait till the breach came, when they could seek such remedy as the lease afforded them; and if it afforded them none, if; was their fault that they did not stipulate for one.
The master was unable to find that the orator ever expressly agreed to take back his part of the land, or
What Skeels did by way of “taking back” his part of the land did not amount to an eviction as matter of law, for the requisite intent does not appear.
The orator, therefore, is entitled to rent for the year ending July 2, 1893, with interest thereon, for that part of the demised premises that is on the home farm. The finding that rent was paid to July 2, 1892, instead of only to March 2, 1892, is well warranted in law.
Reversed and remanded, with mandate.