140 Mich. 452 | Mich. | 1905
The defendant Ellen H. Flower is the owner of premises known as 171,173, and 175 Woodbridge street west, in Detroit. The complainant is a Michigan corporation. The bill of complaint avers that complainant has existed for four years and more, during which period it has occupied for business purposes the lands and premises above described; that it succeeded a firm of the same name, composed of William J. Wray and one David E. Austin; that on September 15, 1897, defendant Wray leased the premises in question of defendant Flower for a term of five years at an annual rental of $600, payable monthly, and that the occupancy of the premises, first by the copartnership and afterwards by the complainant, was known to defendant Flower, the landlord, and that the rent up to August, 1903, had been paid by checks of the Wray-Austin Machinery Company, either the copartnership or the corporation; that the lease in question contained a provision that it should not be assigned without the written consent of the lessor, but contained no clause ■against subletting; that rent had been paid usually from the 1st to the 15th of each month for the preceding month, and had been accepted without question or protest. Paragraphs 4 and 5 of the bill are here set out in full:
“4. That said original lease expired on September 15, 1902, and thereupon said Wm. J. Wray, contrary to the express rights of your orator, and unknown to it, procured an extension of said lease from defendant Ellen H. Flower in his own name for a further period of five years; but your orator avers and charges the fact to be that said lease belonged to and was the property of your orator, and ■said extension so taken by defendant Wm. J. Wray in his own name was in fact the property of your orator, and belonged to it both in law and in equity; and that your orator paid to defendant Ellen H. Flower, without protest on her part, by its own checks, the rent due thereunder until August, 1903.
“5. That on August 15, 1903, defendant Wm. J. Wray sold all his stock in your orator to one H. N. Link, and retired from your orator. That in the negotiations for said sale the question of said lease from defendant Ellen H.*454 Flower came up, and defendant Wm. J. Wray stated and admitted that said lease belonged to and was the property of your orator, and that he had no interest therein, and offered to assign the same to your orator, or to make such disposition of the same as should be required by your orator. That thereupon one Charles S. Hampton, attorney for defendant Ellen H. Flower, was consulted, and the proposition to assign said lease by defendant Wm. J. Wray to your orator was made, and the written consent thereto of defendant Ellen H. Flower was asked, and the said defendant Ellen H. Flower refused to consent to the assignment of said lease by defendant Wm. J. Wray to your orator.
“ That in view of said circumstances the only thing which could be done at the time by your orator was to take a sublease for said premises from defendant Wm. J. Wray, which was done, and said sublease was on said 15th day of August, 1903, executed by defendant Wm. J. Wray to your orator, and was on said last-mentioned date delivered to your orator, a true copy of which lease is hereto attached, marked ‘ Exhibit A,’ and made a part of this, your orator’s bill of complaint.”
It is also further averred in the bill of complaint that it was agreed between' Wray and complainant that complainant was to continue to send its checks for the rent to become due to defendant Ellen H. Flower as had been done, and that when the next installment of rent became due complainant sent its check as aforesaid, and it was returned, and that thereupon complainant sent its check to defendant Wray, and had so continued to do until the time of filing the bill. Upon information and belief it is averred that defendant Wray did not pay the rent due for the month of December, 1903; that on January 2, 1904, a seven-day notice to quit was served on him; that such proceedings were then had that on January 15,1904, judgment for restitution of the premises was entered by the circuit court commissioner in favor of defendant Flower and against defendant Wray, the commissioner finding rent to the amount of $50 to be due, and taxing the costs of the proceedings at $3.50; that no notice of these proceedings was had by complainant; that on January 15, 1904,
The complainant’s contention, as stated in the brief, is as follows:
“1. That by along course of dealing defendant Flower .had recognized the right of complainant in the premises, and that as a matter of fact the lease in question belonged to and was the property of complainant.
“ 2. That the surrender of the lease by defendant Wray cannot affect the rights of complainant, who is the under-tenant.
“ 3. When there are under-tenants upon the premises, each must be served with summons, in order that they may have an opportunity to defend their possession; each must have his day in court.
‘£ 4. Complainant has the right to protect its possession by paying to the over landlord the rent due him.”
On the other hand, appellant contends:
“1. That complainant was simply an under-tenant, and had no rights whatever in the premises, except such as it obtained from defendant Wray.
“ 2. That there was no surrender of Wray’s tenancy, but a bona fide termination of the lease for nonpayment*457 of rent, with no collusion nor agreement of any kind between defendants Flower and Wray.
“3. That the tenancy of the complainant was terminated and all its rights and interests in the premises extinguished on the expiration of. the seven days limited by the notice to pay, which was served January 2, 1904.
‘' 4. That it was not the duty of the appellant to serve notice to quit upon all the subtenants and occupants of the. building, she having no contract relations whatever with them.
“5. That complainant could not take the place of defendant Wray in the proceedings before the commissioner, and prevent the writ of restitution being issued by paying the rent due and double costs.
“6. That, even if the complainant had such right to act in place of the defendant, the appellant was nevertheless entitled to the writ of restitution by reason of the failure to comply with the statutes.”
The essential facts shown by the evidence we find to be as follows: The original lease from Flower to Wray was made September 25, 1897, for a term of five years from and after September 15, 1897, with the privilege to renew for five years at the same rental, provided that the assessed valuation of the realty had not increased. If it had, rent was to be proportionately greater. Taking advantage of this clause, he secured the renewal of the lease for the five-year term at the same rental. In doing this he acted neither secretly nor in fraud or attempted fraud of any of complainant’s rights. On the contrary, there is testimony tending to show that, if he had surrendered the lease, or if defendant Flower had at the time made a lease to other parties, a higher rental would have been demanded. When defendant Wray sold his stock in complainant company, he desired to cease all relations with the company, and he then offered to assign the lease if permission could be obtained, or to surrender it — to do whatever complainant desired to have done in the matter.- Complainant was also subletting the premises, receiving from tenants $3 5 a month rental. Defendant Flower declined absolutely to consent to an assignment of the lease, declined to accept
“I do not propose to advance money from my own pocket to pay the rent for the Wray-Austin Machinery Co. I shall require and expect a $50 payment from you on or before Sept. 30th for the September rent of the premises.”
Some time between September 1st and September 15th complainant sent its check to Mrs. Flower for the August rent, and it was returned with the statement that Mr. Wray had paid the rent. Thereafter it sent its check to Mr. Wray. It had replied to his letter above mentioned
The testimony does not convince us that there was any connivance, conspiracy, or understanding between defendant Wray and defendant Flower to dispossess the complainant, nor that the proceedings were in any sense colorable, nor that defendant Wray has any desire to occupy the premises. There is nothing in the evidence which warrants any other conclusion than that, if complainant had seasonably paid its rent to defendant Wray, he would have continued to accommodate them by paying it over to the defendant Flower. The contention made in the bill and in the briefs that by the arrangement of August 15, 1903, a part of which arrangement was the execution and delivery of the sublease, the complainant assumed the position of Mr. Wray under the original lease, is negatived and disproved by the claim of complainant that under its lease rent was payable on the 15th day of each month, and by the practice of sending him rent in accordance with this claim. The relations and rights of all parties are determined by the written contracts entered into — the two leases. Defendant Flower has done noth
The other contentions stated are incidental, merely, to the propositions upon which equitable jurisdiction was asserted. Whether the statute (3 Comp. Laws, § 11177) permits the subtenant to avoid the issuing of a writ of restitution by paying the amount found due and “double the amount of costs awarded to the said complainant ” to the commissioner or to the landlord is a question of law. It seems to be conceded by counsel for complainant that the payment actually made into court by the sublessee was not sufficient in amount to satisfy the requirements of this statute, because double costs were not paid.
No case is made upon this record for equitable relief. The parties voluntarily assumed relations involving certain legal consequences. The averments relied upon for relief from those consequences, if, indeed, the bill contains
The decree of the court below is reversed, and the bill of complaint is dismissed, with the costs of both courts to defendants.