Clark v. Herring & Mock

McCay, Judge. 1. We will not look closely into the judgment of a Circuit Judge on a motion to dissolve an injunction, on the facts. The law leaves much, in such cases, to his discretion — his judgment, at best, is only temporary, till the hearing, and there is great propriety in trusting to the discretion of the Judge upon the facts, if there be no error of lato. 2. The paper set forth in the record, conveying the interest in this room, is clearly not a mere contract of writing, so as to give the tenant only an usufruct, as provided by section 2253 of the Code, and which, by that section, cannot be con [230] veyed to another without consent of the landlord. This paper can hardly be called a lease, since it wants one of the marked ingredients of a lease, the agreement to pay rent. It is rather an estate for years in the property — a purchase of an interest in the estate for a limited period. Under section 2247, such an estate passes as realty, and under section 2249, the owner has as absolute a right to use the property, as if he had a greater estate, not injuring the revenue. We see no reason, therefore, why this estate for years may not be bought and sold as any other real estate. That section of the Code denying the right of a tenant to convey, applies only to the case put, to-wifc: when the tenant has a mere use, but no estate, as is the case here. 3. It would be very dangerous doctrine to say that a mere tenant, by the month or year, is himself entitled to notice of such equities as bind the landlord. If this were the case, it would always be iu the power of a holder of land to defeat the claim of the true owner. However it might be that notice of equities could be brought home to him, he could always escape the result by getting innocent tenants. The tenant is the mere holder of possession for the landlard, and any equity affecting the landlord’s title, of which he has notice, applies also to the tenant. We think this a proper case to be tried by a jury. Judgment affirmed.