Millbrook Co. v. Gambier

Scott, J.: The facts upon which this appeal comes on for hearing are very carefully and correctly stated by Mr. Justice Shearn and it will not be necessary to restate them. The contract between plaintiff and the defendant Gambier presented a dual aspect. It was not only a contract for the sale of real estate, but it also partook of the character of a lease pending the passing of the title. At the time this contract was made Gambier claimed to [871] have, and apparently had, both the record and the legal title to the property which the plaintiff desired to acquire for its right of way. That it afterwards transpired that the deed under which he claimed was only a mortgage is of no consequence. It is quite evident that plaintiff desired to take immediate possession of the property, and it is clear that it was contemplated when the contract was made that Gambler’s title might prove to be defective for the agreement to pay rent was expressly conditioned upon the happening of that contingency. Plaintiff went into possession in recognition of Gambler’s right to give it possession, and whatever right to possession it acquired was derived from its contract with him, and under his apparent title. In this state of affairs plaintiff expressly agreed that “ in case of failure of title ” it should pay to Gambier rent at the rate of $2,400 per annum. The title did fail — the condition upon which plaintiff was to pay rent happened, and under the plain terms of the contract plaintiff became obligated to pay the rent for so long as it occupied the property under its contract with Gambier. This obligation the plaintiff expressly recognized in its letter to Gambier of May 25, 1910, in which it admitted that it owed him the rent for eight months. How long the obligation to pay the rent would have continued under the circumstances it is unnecessary to consider for Gambier on December 31, 1909, by his attorney, undertook to declare the agreement forfeited. The plaintiff was entitled to take him at his word, and contract with the real owners as it shortly after did. I can see no grounds upon which plaintiff can escape allowing Gambier the agreed rent for the period named in view of the express language of the contract and the happening of the very contingency upon which it was agreed that rent should be paid. Furthermore it is thoroughly well settled that a tenant cannot escape the pay-. ment of rent during the period of its occupancy by alleging a defect of title in its lessor. The judgment appealed from should be modified by deducting from the $4,000 claimed in the complaint the sum of $1,800 representing the rental at the agreed rate from March, 1909, to-December, 1909, and granting plaintiff judgment for the [872] balance, with interest from January 1, 1910, and as so modified be affirmed, without costs in this court. Clarke, P. J. Page and Davis, JJ., concurred; Shearn, J., dissented.