Van Rensselaer's Heirs v. Penniman

By the Court, Savage, Ch. J. The first and principal question in this case is whether the acceptance of the second lease was a surrender of the first. It seems to be well settled, that if a lessee accepts a new lease of the same premises during the term in the first lease, the first is deemed to be virtually surrendered. The cases are collected and commented on in Roberts on Frauds, 254, and onwards. The reason is, that the acceptance of the new lease admits the capacity of the lessor to make such new lease, which he could not have, without a surrender of the first lease. This effect, it is said, may be produced in two ways : 1. by implication or construction, 2. by merger. The doctrine of merger can have no application to this case. It must be by construction, if at all, that a surrender is to be presumed in this case. “ The implication of intention from the acts of the parties, is the only legal foundation which will [579] support them, (surrenders,) in all their extent j” Roberts on Frauds, 257; that is, because the lessor cannot legally execute a second lease of the same premises during the time of a first lease. When the lessee takes a second lease unexplained, this act admits the power of the lessor, which he cannot legally have without a surrender of the first. The presumption of law therefore is, that a surrender has been made. It has been well remarked, that the doctrine of presumption is founded upon the known disposition of man to enjoy what is his own. No man would take from another a lease of his own farm or house, and agree to pay rent for it. This presumption is raised by the circumstances of the case, and the acts of the parties ; and the cases cited in the argument, and also by Roberts, shew that the acceptance of a second lease, even for a shorter time than the first, implies a surrender of the first; and this is the consequence, although the second should be void for any cause other than the want of authority in the lessor. As this presumption of a surrender arises from the acts of the parties, which are supposed to indicate an intention to that effect, it must follow that where no such intention can be presumed, without doing violence to common sense, the presumption cannot be supported. The cases seem to have settled the point, that simply receiving a second lease raises that presumption. The giving a second lease to a third^person does no prejudice to the first lessee; the lessor has in fact no power; and so long as the lessee in the first lease does no act recognizing such power, the second lease is of no force. The acts of the lessor, therefore, receive force from those of the lessee. If the acts of the parties in this case, taken all together are such as to rebut the idea of a surrender, then none ought to be presumed. The facts in this case are that the lessor, when he executed the first lease, in 1766, was tenant in tail. This was before our revolution. From an examination of the papers then executed, it is fair to presume that the parties intended a sale ; but not being able to accomplish that, a lease for three lives was given. This the tenant in tail might lawfully do; and he selects as one of the cestui que vies the heir at law, so that the heir himself could not take [580] possession. The lease contains a covenant that the person entitled to enter should pay the lessee for the value of the improvements; and lest he might not have power to bind those who should have the right of entry, the lessor gives a bond, the condition of which is, that the improvements shall be paid for, if the heir at law chooses to dispossess the lessee. If he does'not choose to dispossess the lessee, then the lessee retains possession, and nothing is paid for improvements. The rent is $30 per annum, which is three dollars per year more than the annual value of the land. This sum, compounded for more than sixty years, would more than equal the value of the land at the date of the lease, or at the present time. It has been contended, on the part of the plaintiff that by the first lease the improvements were not to be paid for at all, unless the heir entered before the termination of the three lives. That proposition is not supported by the fair construction of the lease, and the fact just mentioned rebuts it. To shew such a consequence consistent with justice, it should have appeared that the rent was so far below the true annual value of the land, that the additional annual value would equal the value of the improvements. The American revolution, and the law of this state consequent upon that event, altered the rights of the lessor. Instead of being tenant in tail, he became, by our statute, tenant in fee; and by his will, he gave the property for life to the same person, who, but for the change in the law, would have been absolute owner. The rights of the lessee were not changed; he was still tenant per auter vie for the three lives named. On the 22d June, 1796, the second lease was executed, which purported to be given for the same term, and at the same rent, and contains a similar covenant for the payment for improvements, and a covenant by the lessee, that on being paid for his improvements at the expiration of the lease, he will yield up the possession of the premises. As the lease is signed by both parties, this covenant contains, by implication, an agreement by the lessor that the lessee • may retain possession until he shall be paid for his improvements. The question recurs, did this transaction amount to a surrender?' A surrender, to be effectual, should be made [581] to the lessor, or the reversioner, John I. Van Rensselaer was neither. By the codicil to the last will and testament of his grand-father, he had a life estate in the premises, but subject to the lease given by his grand-father. Probably the true object of the second lease was to confirm the "prior lease, and to give the lessee greater security for his improvements than he had by the first lease. ■ When the second lease was executed, the lessee had a good title by the first lease to all which it purported to convey. He had, besides, the personal covenant of the lessor for the payment of the improvements. On the supposition that a surrender was intended, the lessee must have intended to abandon all claim for his improvement, and to give up a good title for three lives, on receiving a lease for one of those lives. John I. Van Rensselaer being tenant for his own life only, supposing a surrender made, could not give a valid lease for three lives. At his death his estate terminated, and his heirs would have had a right to enter, although the other lives mentioned in the lease might have been in esse. Under these circumstances, and no surrender having in fact been made of the first lease, or of the bond accompanying it, but both being retained by the lessee, I cannot believe that a surrender was intended. The authorities say that the surrender in cases of second leases is presumed from the intention of the parties. In this case, every circumstance, except the fact of receiving the second lease, altogether rebuts the idea of an intention to surrender the right to compensation for improvements. - If no surrender was intended nor made, then the question arises whether both leases are in force, and whether rent is due on each. The only satisfactory answer which I can give is, that the second lease was intended as a confirmation of the first; and the fact, that only §30 per annum rent has been paid since the execution of the second lease, supports such conclusion. I am of opinion that no surrender was made or implied in receiving the second lease. Supposing, however, that the acceptance of the second lease should be deemed a surrender of the first, the whole of that instrument as cancelled, and the bond given as a collateral security for the performance of the covenant of the lessor, as in [582] operative, what improvements are the plaintiffs liable to pay ^0I’ unc^el" t^ie stipulation contained in the second lease 1 The covenant is to pay for all the buildings and improvements that may be made on said lands. It is not denied that this covenant is obligatory upon the plaintiffs in this suit. The words, may be made on said lands, I think, may be understood as synonimous with may have been made, or shall then be and remain on said lands. It must have been the intention of the parties that the improvements should be in existence upon the lands when the lessee should be turned out of possession. The lessor and his representatives would be very unwilling to pay for improvements made after 1796, if the buildings had been consumed by fire; but, according to the strict grammatical construction of the words, such buildings and improvements would have been made, in the language of the covenant. To give a rational meaning to the words used in the contract, requires us to say that they include all such improvements as are actually upon the premises, when the heirs assert their right to enter. My conclusions are, 1. That by the first lease, the defendant is entitled to compensation for all hisjmprovements, but is not entitled by virtue of that lease to retain possession until paid for his improvements; 2. That the second lease, under the circumstances of this case, was not a surrender of the first, but a confirmation of it; 3. That by the second lease, whether the first was surrendered or not, the defendant is entitled to compensation for all the buildings and improvements upon the premises at the expiration of the lease, provided the premises are demanded of him; and that he is entitled to retain possession until he is paid for those improvements. The defendant is entitled to judgment.