189 A. 765 | Pa. Super. Ct. | 1936
Argued December 17, 1936. The question involved on this appeal is whether one tenant in common, who takes possession of the common property under a written lease from his cotenants for a fixed term and before the end of the term gives written notice to his lessors that after the conclusion of the term he will not occupy the premises under the lease but as a tenant in common and remains on the premises, thereby renews the lease.
A brother and three sisters were the owners as tenants in common of a valuable residence property in Merion, Montgomery County. The brother and two sisters, by writing, leased their three-fourths interest in the premises to their sister, Jane P. McNeely, the defendant, for the term of one year beginning November 1, 1929, for which the lessee agreed to pay as rental $3,000 per year in quarterly instalments and the taxes assessed against the property and to keep the premises in repair. The lessee continued to occupy the premises from year to year for some time. In 1931, one of the sisters, a lessor, died and willed her share in the property to her son, Edwin Vernon Dougherty, and her daughter, Eleanor D.D. McCullough. As *57 a result the nephew and niece each became owners as tenants in common of one-eighth of the property and each of these two became entitled to one-sixth of the rental stipulated in the lease. Rentals were paid until November 1, 1932. Mrs. McNeely continued to occupy the premises after that date and until after November, 1934. On March 22, 1935, Mrs. McCullough brought this action on behalf of all the lessors to recover $9,000 or three years' rental with interest.
It is well settled that one lessor has a right to institute an action in the names of all the lessors: Marys v. Anderson,
The learned judge of the court below states the proposition involved as follows: "Did the letters of the defendant to Mrs. McCullough and the other lessors, stating that after November, 1932, she would no longer occupy the premises as a lessee under the lease but as a cotenant, change the occupancy of the premises by the defendant from that of a tenant under the lease to the occupancy of a tenant in common?" There are further facts with relation to the termination of the lease, none of which is in dispute, that have a bearing on that question.
The lease provided that if the lessee should continue in possession of the premises after the expiration of the term, the agreement should "become immediately operative for another like term." The general rule is well settled that when a lessee holds over, a new lease is implied on the same terms and conditions as the old lease: County v. Bridenhart,
The court below in entering the judgment and the appellee in her argument relied largely on the case of Graham v. Dempsey,
Now it must be conceded that even when the lease was in force Mrs. McNeely occupied three-fourths of the premises as a tenant of her co-owners and the remaining one-fourth as an owner. Each tenant in common is entitled to the use, benefit and possession of the property and may exercise acts of ownership in regard thereto, subject to the limitation that he is bound so to exercise his rights in the property as not to interfere with the rights of his cotenants: 62 C.J. *60
421. Each tenant has an equal right to the possession of the whole (Kline v. Jacobs,
"It is conceded that where one is interested with another in an estate an implied obligation arises to sustain the common interest": Enyard v. Enyard,
But the appellee suggests that Mrs. McNeely could only exercise her right to protect her interest in the property and that of her cotenants by moving out for a few hours and then moving back. The law does not require the doing of vain and fruitless things. Not *61 only so, but the reason which prompts the rule requiring a tenant to surrender leased premises under penalty of an automatic renewal is not applicable in a situation such as that with which we are concerned. Here, there was no denial of title and, as was the duty of the defendant, she occupied the premises not only on her own behalf but on behalf of all her cotenants. Consequently, a written notice of the termination of the relationship of landlord and tenant fully protected the rights of the cotenants and, in fact, was more consistent with their mutual duties and obligations than if she had gone through the vain formality of moving her goods from the premises for a few hours and then returning.
Another case upon which the court below relied is that ofClayton v. McCay,
We therefore hold that where one of several cotenants takes possession of the common property under a written lease from the remaining cotenants and the lessee, prior to the expiration of the term of the lease, gives written notice to his lessors that at the end thereof he will not continue to occupy the premises as a tenant of theirs but only as a tenant in common, the lessee does not, by remaining in the premises after the term, create an implied renewal of the lease provided *62 his cotenants are not excluded. The court below erred in directing a verdict for the plaintiff. The basic facts having been established by the admissions of the plaintiff, Mrs. McCullough, judgment must be entered for the defendant. If Mrs. McCullough has any claim against her aunt, it is not by virtue of the written lease.
Judgment reversed and here entered for the defendant.