Shipley v. American Security & Trust Co.

296 F. 1011 | D.C. Cir. | 1924

ROBB, Associate Justice.

For several years plaintiff in error had leased of the defendant in error an apartment under yearly leases, the last of which was to expire on or about September 30, 1922. The premises actually were occupied by a subtenant, although there was a covenant' in the lease against subletting. Defendant in error duly served on plaintiff in error a 30-day notice to vacate the premises.

At the trial plaintiff m error contended that the provision against subletting had been waived, and that under the terms of the Ball Rent Act, as amended (42 Stat. 543), defendant in error was not entitled to possession as against him. The court, finding “that during the entire period of the lease the premises were occupied by subtenants,” ruled that plaintiff in error was not in a position to invoke the provisions of the Ball Rent Act, and that as against him the judgment must be for defendant in error.

Unless the provisions of the Ball Rent Act, as amended, apply, plaintiff in error, at the expiration of his lease, became a tenant at sufferance, liable to be dispossessed under a notice served upon him. Morse v. Brainerd, 42 App. D. C. 448. But plaintiff in error, who had assumed the role of landlord and surrendered possession to another, was not a tenant within the meaning of that act, section 109a of which provides:

“And such tenant shall not he evicted or dispossessed so long as he pays the rent and performs the other terms and conditions of the tenancy," etc.

Just as two bodies may not occupy the same space at the same tune, so two independent tenants may not occupy the same premises at the same time. When plaintiff in error surrendered possession, he waived his right as a tenant in possession under the Ball Rent Act, the spirit and purpose of which was the protection of an ajctual tenant in possession, and not that of a middleman, like the plaintiff in error. That this must be so is apparent, when we consider the relative rights of plaintiff in error and the tenant actually in possession. The provisions of the act protected such tenant as against plaintiff in error. In other words, he was entitled to possession so long as he paid his rent and performed the other conditions of his agreement with plaintiff in error.

We agree, therefore, with the ruling of the trial court that plaintiff in error is not entitled to invoke the provisions of the Ball Rent Act. Accordingly, the judgment is affirmed, with costs.

Affirmed.