54 N.Y.S. 1079 | N.Y. App. Div. | 1898
Lead Opinion
Practically the only question presented by the appellant is that the court erred in declining to hold that the defendant McKinnon was estopped by the lease of April 15, 1886, from denying that Warren G-. Willis, the original plaintiff, was the owner of the entire title. The lease is from Prentice W. Willis, as surviving partner of the late firm of Travis & Willis, to Frank H. McKinnon, of a portion only of the property. It was then understood by all parties, according to the evidence on the part of the defendants, that Mrs. Travis, as executrix of the estate of Mr. Travis, the deceased partner, had an interest in the property. Prentice said that she would have to consent to the renting of it. She refused to sign the lease, saying that she wanted to sell. She finally agreed to give McKinnon three months’ notice in case she sold, and also the option of buying at same price she could sell for to another party, and then McKinnon took the lease from Prentice. The lease provides that, in case of sale, McKinnon should have first privilege of buying, and at least two months’ notice to vacate. It might be found from the evidence that the lease in the form it was, and in view of the negotiations with Mrs. Travis, was not intended to be hostile to the rights of Mrs. Travis. The lease was for one year, with privilege of renewal if the premises were not sold. At the end of the one year, Prentice and McKinnon settled. McKinnon wanted a renewal. Prentice refused to give it; said he could not; that his uncle was going to foreclose, and take the title, and McKinnon would have to make arrangements with him. After repudiating the lease, and disclaiming any right to control the possession, Prentice or his subsequent grantee, Warren G-. Willis, the original plaintiff, ought not to be permitted to say that McKinnon is estopped from asserting any right he subsequently obtained. It is to be observed that on this question of estop
Judgment affirmed, with costs.
HEEEICK and PUTNAM, JJ., concur.
Dissenting Opinion
Prentice J. Willis and Harvey J. Travis, at the time of the death of Travis, in 1883, were partners in business, and the owners as tenants in common of the premises described in the complaint, subject to two mortgages. After the death of Travis, Willis continued the business as surviving partner, and in possession of the premises, until April, 1886, when, by a lease under seal, executed by him, in which he described himself “as surviving partner of the late firm of Travis & Willis,” he leased the premises to the defendant for the term of one year from that date, with the privilege to the defendant of a renewal of the lease for another year, if the premises should not be sold. It was understood between the parties at the time of the execution of the lease that Mary J. Travis, as devisee, and executrix ■of the will of Prentice J. Willis, had succeeded to the tiñe of Prentice J. Willis in the premises, but that she did not object to the lease, and such was the fact. The defendant entered into possession of the demised premises, and occupied them for one year, and paid the rent to Prentice J. Willis. At the end of the year the defendant requested a renew’aLof the lease for another year, but Prentice J. Willis declined giving it, alleging that his uncle, who held one of the mortgages, was about to foreclose, and it wmuld be of no use to renew the lease. Nevertheless the defendant continued in possession, and has ever since retained it. On the 1st day of May, 1888, Prentice J. Willis conveyed the said premises to the plaintiff by quitclaim deed, together with the reversion, remainder, rents, issues, and profits thereof. After the plaintiff’s purchase of the premises, he bought iff the same upon the foreclosure sale of the two outstanding mortgages, but these mortgages <lid not cover all the premises. The result was that at the time of the commencement of this action he was the owner of seven-eighths of the main premises and of three-fourths of the wing thereto. On June 13, 1887, Mary J. Travis conveyed to the defendant her interest in the premises, subject to the above mortgages. The defendant, therefore, at the commencement of the action, had the legal title to one-eighth of the main part and one-fourth of the wing. The defendant,- knowing just
The judgment should be reversed; new trial granted; costs to abide the event.
PARKER, P. J., concurs.