94 Vt. 458 | Vt. | 1920
The premises in question, consisting of “the drug store and cigar store with basement thereunder, situated on the northwest corner of Church and College Streets in” the city of Burlington, and being the entire first floor and basement of the building on that corner, owned by defendants Taft, in the wife’s right, were, by the owners’ written lease, duly executed, delivered, and recorded, on March 27, 1913, leased to the plaintiff for the term of ten years from the first day of that month, with the option to the lessee to extend the term for five years from and after the first day of March, 1923, and with covenant for quiet enjoyment. The “drug store” has two rooms, and the “cigar store,” one. The latter is sometimes spoken of in the record, also in this opinion, as “shoe shine parlor.” The lease creates one entire interest in the tenant, and reserves one entire rent of the whole premises: $1,300 a year, payable in equal monthly installments in advance on the first day of each month, the first payment to be made on April 1, 1913. It also contains a reservation, that if the lessee shall at any .time for the space of thirty days refuse or neglect to fulfill the covenants thereof, the lessors shall have the right to enter upon and repossess the premises.
The plaintiff went into possession of the demised premises on or about March 27, 1913. On the 15th day of September, 1914, he sublet the cigar store to Thomas Phillips and Michael Spylios, for the term of one year with the privilege of two years additional, subject to a certain right of option in the sublessor. Soon thereafter each of the subtenants assigned his interest in the term to one George ITerritos.
Albert N. Gebo acted as agent for Mrs. Taft in collecting rents from the plaintiff, sending the same, when collected, to her. M.- G. Rosenberg, the surety on the original lease, acting as agent for the lessee, paid Gebo, as rent in advance on the cigar store, twenty-five dollars for each of the months of August, September, October, and November, 1915. These payments were by checks signed by M. G. Rosenberg and payable to Mrs. Taft; and the cheeks were received and negotiated by her. The last of these payments was made November 5th, and for that month. After the date last named neither the lessee nor any one in his behalf paid any (separate) rent for the cigar store to Mrs. Taft, though a subsequent tender was made, as presently noticed; but after Russell W. Manter went into possession of the drug ■store as subtenant, he paid (pursuant to an agreement dated May 28, 1915, discussed further on) the rent reserved in the sublease, directly to her, $83.33 for each successive month in advance, the first payment being for the month of August, 1915, and the last, for the month of March, 1916.
May 28, 1915, an agreement in writing was entered into among Mrs. Taft, the plaintiff, and Mr. Manter, whereby Mrs. Taft, in consideration of the sum of five hundred dollars paid her by the plaintiff, consented to the subletting of any portion or the whole of the demised premises to Manter, one condition being “that the rent paid by the said Manter, to the extent of the rent due me (Mrs. Taft) under Rosenberg’s said lease, shall be made to me (Mrs. Taft) or to my agent.”
The lessors were not obliged to accept less than the full amount of the installment of rent when it fell due; but as they saw fit to do so, thereby affirming the lease to the end of the period for which the partial payment was made, they could not
July 1, 1916, defendants Taft, by a written lease executed in due form, demised unto Sarah R. Manter the drug store and basement until May 29, 1920, with an option in the lessee to extend the term to March 1, 1923, and again to extend it until March 1, 1928, which lease was duly recorded. By this lease rent was reserved in thé sum of eleven hundred and sixty dollars yearly, to be paid in equal monthly installments on the first day of each month in advance. The lease contains a provision as follows: “The said lessee herein shall forthwith assign all the right, title and interest of the estate of Russell W. Manter in a certain lease of said store and what is known as the shoe shine parlor, by Russell W. Manter to George ITerritos, dated August 10, 1915, including the right as mentioned therein, to terminate the same September 15, 1916, reserving, however, the rent due said Manter’s estate under said last-mentioned lease, which rent is to be paid to the said Lovina M. D. Taft, under other provisions of this lease. ’ ’ Accordingly the assignment thus provided for was made by Mrs. Manter on the same day as was the lease from the Tafts to her, and manifestly the two should be considered together as forming one and the same transaction. This lease was assigned by Mrs. Manter to J. Edward Reeves January 5, 1917, which assignment was also recorded.
From the fact that at the time of the execution and delivery of the two aforementioned leases the Tafts had no right to exercise their option of re-entry, it follows that they still had only an estate in reversion without any present right of possession. They had no such interest in the premises as they undertook to convey to Mrs. Manter; therefore their lease to her was void as against the plaintiff, although their acts in that respect and in connection therewith worked a substantial and unlawful interference with the rights of the plaintiff in the possession and enjoyment of his leasehold estate.
The lease to Poulos has a somewhat different standing. It is for a term exceeding that of the original lease, even though the latter be extended under the option given therein. At most, however, it is but a lease interesse termini, which is only a right and not an estate; and until the interesse termini ripens into an estate, which will not be until the expiration of the lease to the plaintiff, there can be no lawful entry upon and into'possession of the premises; and consequently it did not affect the relation existing between the lessors and the plaintiff, nor the right of the latter to possession. 1 Tiff. Land. & Ten. § 146d; Hyde v. Warden (G. A.), 3 Exch. D. 121, 37 L. T. 567; Edwards v. Wickwar, 1 L. R. Eq. 403. Therefore, the record shows that Poulos, without right and paying rent to the original lessors, went into possession of the cigar store, and is so continuing.
Decree reversed and cause remanded tuith directions that a decree he entered for the plaintiff, and an accounting had, and damages assessed, all in conformity with the views expressed in this opinion, iuith costs to the plaintiff.