58 Iowa 15 | Iowa | 1882
I. Tbe plaintiff leased to defendant tbe north 120 feet of lot 747, in tbe city of Dubuque, for tbe term of five years. Tbe following covenants in tbe lease, in tbe view
“ It. is herein further mutually agreed that this lease is subject to and is terminated by the sale of said premises herein leased, by thp said party of the first part, and on the condition that the said party of the first part shall pay to the party of the second part one-half the value of improvements made on said premises by the party of the second part. Improvements to consist of one ice-house, and if the said premises are not sold within three years, then the said party of the first part shall not pay to, or be liable to, the said party of the second part for one-half or any portion of the value of said ice-house. It is further agreed that the said Philip Pier, shall have preference over others to re-lease or purchase said premises on said party of the first part’s conditions.”
Under these covenants the plaintiff claims that the lease was terminated by the sale of the property, more than three years after the commencement of the term provided for in the lease, and that defendant waived his right under the lease to purchase the property.
The lease was executed in January, 1878. On the 10th of August, 1880, plaintiff executed a cpntract to-a railroad corporation, giving it the option to purchase the property at a price and upon terms specified. Under this contract, if the purchase was made, the possession of the property was to be delivered November 15,1880. The contract was assigned to another railroad company, which transferred it to the city of Dubuque. On the 15th day of November, 1880, plaintiff entered into a contract to sell the property to the city, the. conveyance to be made on the 10th of January, 1881, and the possession of the property to be delivered February 15th, next following. The evidence tended to show that the contract with the city was made in pursuance of the optional right it acquired to purchase the property under the contract of plaintiff, assigned to it. The, optional contract provided
III. We are first required to determine whether the interpretation of the lease, adopted by the court, to the effect that the covenant as to the sale of the property, contemplated a perfected sale by deed, which would pass the title and right of possession to the lot, as was accomplished by the deed to the city, executed after the 1st day of January, 1881. We think this interpretation and the instruction to that effect are correct.
We find it unnecessary to consider the arguments of counsel" upon the question, whether there may be a sale of real property without a deed of conveyance therefor. We think the true construction of the lease, which discloses the inten
Now it is very plain, that the stipulation in regard to the sale of the property, contemplated such a sale or disposition thereof as would terminate the right of defendant and plaintiff to the possession of the property. As long as plaintiff held such right, defendant could occupy the property. Therefore a contract of sale which did not deprive plaintiff of the right of possession, and did not disturb the defendant’s right to the occupancy of the property, was not a sale contemplated in the lease.
The optional contract provided that possession should be delivered the 15th of November. Under the contract the possession of the property could not have been disturbed until that day. But by the contract with the city, the possession of the property was not to be surrendered until after the expiration of three years, from the date of the execution of the lease. There was, therefore, no such sale of the property as would deprive defendant of its possession until that time.
It is said that the extension of the .time, for giving possession of the property, was for the purpose of defeating the right of the defendant to recover for half the value of the ice-house. This may be admitted. Plaintiff, by the terms of the lease, is authorized to sell at any time; the salé and fhe time of the sale rested wholly within his option. He then had the right to .hold possession of the property until defend
IY. The only remaining question in the case involves the waiver by the defendant of his right to purchase the property. Upon this branch of the case there was conflict in the evidence. There is no such absence of testimony supporting the verdict as will authorize us to reverse the judgment.
This discussion covers all questions presented to us in the argument of counsel.
Affirmed.