69 Ky. 58 | Ky. Ct. App. | 1869
delivered the opinion oe the court.
C. A. Moore being in possession of a house and lot in the city of Louisville, owned in fee by his wife, Catherine Moore, on the 18th day of March, 1851, executed a lease thereof to Thomas Sloan for a term of ten years from the 12th of April, 1851, at the rates of one hundred and fifty dollars per annum till the 12th of June, 1858, and two hundred dollars per annum thereafter till the 12th of June, 1856, and two hundred and fifty dollars per annum for the residue of the term.
Sloan assigned said lease to C. S. Reay, who assigned it to Robert Story, who assigned it to Sloan, the original lessee, on the 4th of August, 1853; and afterward, on the 23d of November, 1855, said C. A. Moore, by a written indorsement on said lease, agreed to extend it for a term of ten years from the expiration of the first lease at the rate of three hundred dollars rent per annum; and afterward, on the 18th of September, 1860, Sloan assigned the lease to William Cawein.
The appellee Hehl purchased the property, with removable fixtures thereon, from Cawein for two thousand dollars, and sold them, about the 18th of June, 1866, to Otto Winstell and Jacob Schuster for two thousand five hundred dollars; and with his consent Cawein executed an assignment of the lease directly to Winstell and Schuster, dated the said 18th of June, 1866. It appears that afterward, Winstell and Schuster desiring that said transfer should be correctly represented by the written assignments, two other indorsements were at their instance written at
C. A. Moore died in February, 1865, and it appears that his widow afterward received rents, according to the terms of the lease from Cawein and Hehl before, and from Winstell and Schuster after, the transfer to the latter, for about fifteen months after the death of C. A. Moore. Then, disaffirming the lease, she set up claim to the possession of the property, which was compromised without litigation by the execution of a new lease from her to said Winstell and Schuster, dated the 20th of November, 1866, of said house and lot, for a term ending on the 12th of April, 1871, for a rent of twenty-five dollars per month, until the 1st day of January, 1867, and at the rate of six hundred dollars per annum thereafter.
Afterward, on the 10th of April, 1868, Schuster assigned to Otto and Emil Winstell his interest in the right of recovery, which they obtained against Hehl by reason of his assignment and the loss of the use of the property by the assertion of the claim of Mrs. Moore.
Said O. and E. Winstell brought this suit in April, 1868, against Hehl and Schuster, seeking a rescission of the contract between Hehl and Otto Winstell and Schuster, and to recover back of Hehl the sum of two thousand five hundred dollars, with interest from the 18th of June, 1866.
. The action was defended by Hehl mainly on the grounds: first, that the assignment and transfer to Winstell and Schuster did not import a warranty of title or possession; second, that there was no actual eviction of the tenants in possession, and could be none under the claim of Mrs. Moore in opposition .to the lease, because she was estopped from so assorting her claim by having accepted
The first inquiry is as to the legal effect of the assignment of the appellee to "Winstell and Schuster.
It is argued for the appellants that it imports an implied undertaking by the assignor; that the assignees of the lease should have the undisturbed possession of the demised premises during the term, such being the implied warranty of the original lessor. (Taylor’s Landlord and Tenant, sec. 304). But in our opinion the implied obligation of the assignor is less comprehensive, and does not exceed that which is generally implied by the assignment of a bond for money or the conveyance of land, which is that the assignor has a right to pass to the assignee what his assignment purports to pass; or, in other words, that he is the absolute and unconditional owner of the land, and has a right to demand what it calls for; and that he will respond for the sufficiency of the obligor or his representatives. (Bedal v. Stith, 3 Mon. 290; Tribble and Baker v. Davis, 3 J. J. Mar. 633; Emmerson v. Claywell, 14 B. Mon. 18.)
We perceive no ground on which the claim against the appellee can rest, except the ordinary responsibility resulting from an assignment, which operated to bind him to refund the consideration he received for the assignment of the lease, exclusive of the price of removable fixtures and other personalty, in the event that Winstell
The next question to be determined is whether Winstell and Schuster were legally obliged to yield to the claim of Mrs. Moore, which they might have done without litigation if the claim was such as they could not successfully resist, the burden resting on them of proving that fact.
That the lease of C. A. Moore was only binding on his wife during his life-time there can be no doubt; but it is contended, and according to some adjudged cases too, that by her acceptance of rent and apparent acquiescence in the lease after she became discovert she affirmed it, and become bound by its provisions.
This would have been so, no doubt, if she had originally joined her husband in the lease; for, having thereby attempted to bind herself in writing, she might, after her husband’s death, affirm the act or avoid it, at her election. But the principle has been laid down, as we think, in accordance with the weight of authority, that “ a mere verbal lease by husband and wife of her lands, or a written lease to which she is not a party, is void as to the wife.” (Taylor’s Landlord and Tenant, section 102; 1 Roper on Property, 93; Worthington’s lessee v. Young, 6 Ohio, 314.)
Whether Mrs. Moore might not have barred her right of recovery by acts constituting an estoppel need not be here decided. The mere receipt of rent, which she had a right to demand irrespective of the lease, did not create such an'estoppel.
Whether therefore they released the appellee from responsibility by surrendering the old lease on the acceptance of the new one, and thereby placed it out of the power of the court to put them and the appellee in statu quo by a rescission of their contract, as is contended for the appellee, we are of the opinion that the plaintiffs did not manifest any right of recovery in this case, and their petition was properly dismissed.
Our attention has been drawn to the case of Hackett v. Schad, 3 Bush, 353, as militating against some of the views which we have expressed in this opinion. That was an ordinary action upon the note of Hackett to Schad for $1,500, the balance of the consideration of a sale to Hackett of an unexpired term which Schad held in a house and appurtenances as lessee of Johnson, whose lease was assigned to Hackett; the defense being a failure of consideration in consequence of the death of Johnson, and the reversion of the property to his wife, who held the title and a counter-claim to recover tack one thousand dollars which Hackett had already paid. And this court reversed the judgment which was rendered in favor
Wherefore, for the reasons indicated in this opinion, the judgment is affirmed.