Hildebrand MacHinery Co. v. Post

CoNnoe, J. Under and by virtue of its deed from W. C. Ervin and wife dated 15 September, 1932, the plaintiff is now the owner of the parcel of land and of the buildings described in its complaint, subject,' however, to the rights of the defendants under and by virtue of the lease to them executed by O. E. Kistler, agent for W. C. Ervin, and dated 15 July, 1931. The fact that the lease, although for a term of more than three years, was not recorded at the date of the deed to the jffaintiff (C. S., 3309) is immaterial. The land and the buildings described in the deed were conveyed to the plaintiff subject to the lease, which was duly assigned to the plaintiff contemporaneously with the execution of the deed to the plaintiff. See Hardy v. Fryer, 194 N. C., 420, 139 S. E., *747 833, and cases cited in tbe opinion in tbat case. Tbe plaintiff concedes that it owns tbe property conveyed to it by its deed from W. 0. Ervin and wife, subject to tbe rights of tbe defendants under tbis lease. At least, tbe plaintiff does not contend to tbe contrary on tbis appeal. Tbe plaintiff contends, however, tbat having given sixty days notice to the defendants in accordance with tbe provisions of paragraph 5 of tbe lease, tbat it would demand possession of tbe property described in tbe lease on 15 November, 1932, it was entitled to such possession on tbat date, notwithstanding tbe payment by tbe defendants of all sums due as rent under tbe lease, and notwithstanding full performance by tbe defendants of all tbe covenants and agreements undertaken by them as lessees. Tbe language of paragraph 5 construed in connection with tbe language of tbe entire lease (Benton v. Lumber Co., 195 N. C., 363, 142 S. E., 229) does not sustain tbis contention. It is expressly provided in paragraph 4 tbat tbe lease should run for four years from its date. There is no provision in tbis paragraph by which tbe term might be shortened at tbe option of tbe lessor, as was tbe ease in Texas Co. v. Fuel Co., 199 N. C., 492, 154 S. E., 829. It was manifestly tbe intention of tbe parties to tbe lease tbat tbe term should be four years, and tbat tbe lessees should have tbe right to bold tbe property described in tbe lease for tbe full term, provided they paid tbe rent as stipulated in tbe lease. If they failed to pay tbe rent monthly as stipulated in the lease, and tbe lessor demanded possession of tbe property, after having given sixty days notice of such demand, then and in tbat event tbe lessees agreed to vacate tbe buildings and yield possession of tbe property to tbe lessor. In support of tbis construction see Trust Co. v. Duffy, 153 N. C., 62, 68 S. E., 915, and Robertson v. Robertson, 190 N. C., 558, 130 S. E., 166. There was no error in tbe judgment dismissing tbe action as of non-suit, and discharging tbe receiver, who bad been appointed by tbe court during tbe pendency of tbe action. Tbe judgment is Affirmed.