| Va. | Feb 2, 1905
delivered the opinion of the court.
The writ of error in this case is to a judgment of the Court of Hustings for the city of Portsmouth, rendered in behalf of the defendant in error, plaintiff in the trial court, in an action of unlawful detainer, to recover possession of a lot, with the buildings and improvements thereon, situated in the city of Portsmouth.
It appears that by a lease bearing date October 4, 1867, the lot in question was demised to the defendant for the term of ten years, from January 1, 1868, at a yearly rent of $185, the lessee also covenanting to pay all taxes accruing upon the property during the continuance of the lease, and to erect upon the lot a two-story brick building, not to be worth less than $1,500, and to be completed within six months from the date of the lease. It was further stipulated that at the expiration of the first term, it should be optional with the lessor to continue. the lease for a second term of ten years, on the same terms, upon giving six months’ notice of his purpose to renew prior to the expiration of the first term. The lessor also covenanted, if the lease was not so continued, to pay the lessee the full value of the buildings erected by him upon the property in cash, the same to be valued by three disinterested persons,
The six months’ notice of lessor’s election to continue the lease was not given, but the lessee remained in the quiet and undisturbed possession of the premises, and continued to pay taxes and the rent reserved, and the lessor continued to receive the rent until January 1, 1903. At that date the lessee was in arrears for rent to the amount of $252.50; and on July 1, 1902, the lessor served notice upon him that he was at that time a tenant from year to year, and that the tenancy would expire January 1, 1903, at which time he would be expected to surrender possession of the premises. Until the date of that notice nothing had been said by either party as to the termination of the tenancy, or that the premises were held on terms other than those prescribed in the lease; nor had any demand been made by the lessee'with respect to paying for the buildings.
The error assigned is that by the terms of the lease the lessor was not entitled to recover possession of the premises until the buildings were paid for.
On the other hand, it is insisted by the defendant in error that this case is ruled by the decision of this court in Pierce v. Grice, 92 Va. 763, 24 S. E. 392.
Both cases involve the construction of building leases; the lessor was the same in each; the first terms of ten years com
In Pierce v. Grice, supra, after the expiration of the second term of ten years, the lessor brought an action of assumpsit .against the lessee to recover the sum of $300 annually, for the period of five years next preceding the institution of the suit, for the use and occupation of the buildings erected upon the leased premises. The ground upon which the defendant denied liability was that the buildings in question were his property, and that the plaintiff had, therefore, no right to recover any amount for their use and occupation. But the court held: ■“That a contract of lease for a period of ten years, with the ■option to the lessor at the end of that period to renew for another period of ten years, upon like conditions, or else pay for the buildings erected by the lessee, is satisfied by one renewal for the period of ten years.”
The plaintiff in error maintains that the lease in the case in judgment is to be distinguished from that in Pierce v. Grice, supra, in this, that in the latter case it was merely left optional with the lessor to continue the lease, while in this case the lessor was required to give six months’ notice, previous to the termination of the first term, of his election to continue the lease. Attention is also called to the fact that, upon a failure to give the required notice and pay for the buildings, the lessee was to become a tenant from year to year, subject to the
With respect to these contentions, it is not perceived that the difference between the leases materially affects the question at issue. The failure of the lessor to give the six months’ notice of his intention to renew the lease, entitled the lessee, at the expiration of the first term, January 1, 1878, to decline to accept the second term, and to at once demand pay for the buildings. But he impliedly waived that notice, and, having accepted all the benefits that could have accrued from a formal renewal of the lease for the full period of the second term, he cannot now be permitted, by shifting his position, to reap the additional advantage of receiving pay for the buildings, on the theory that he was holding all these years as tenant from year to year. If it was his purpose to stand on the letter of his contract, fair dealing required that he should have repudiated responsibility under the second lease for want of notice, and insisted on his right to pay for the buildings when that right first accrued, and not after he had received the full benefits of- the lease.
It may be said here, as was remarked in Pierce v. Grice, supra, under substantially the same state of facts: “As the lease was continued for twenty years, the full period which the lessee was entitled to, the lessor had, at the expiration of that time, the right to the possession of the leased premises, including the storehouse.”
Por these reasons, the judgment complained of is without error, and is affirmed.
Affirmed.