Appleton v. Ames

Devens, J. The plaintiff’s position, that by the so called surrender of the lease of Wight, on March 11, to the defendants, he continued, as sub-lessee, the tenant of Wight, under no liability to pay rent to any one, and that- it was the duty of the judge thus to have found, cannot be sustained. Upon the facts as reported, it was competent to find that the defendants had taken possession of the leased premises for breach of the condition in the lease to Wight. It was in evidence that Wight had failed in January, 1884, and from this it might well be inferred that he had not merely failed to meet some mercantile obligations, but that he was unable to comply with the covenants in his lease. Upon neglect or failure by Wight to perform any of these covenants, or if he should be declared bankrupt or insolvent, or if any assignment should be made of his property for the benefit of creditors, the lessors were entitled, without further notice or demand, to enter and repossess themselves of the estate, as against the lessee and •those claiming under him. On the “ failure ” (as it is termed in the report) of Wight, the defendants put a janitor into the building, and made arrangements by which Wight was to collect the rents for them. These facts, if they did not constitute a taking possession by them, certainly afforded evidence of it. In answer to the plaintiff’s inquiry of the defendants, whether his rights were in any way affected, and if he should continue to pay rent to Wight as heretofore, he was told it would be right to pay rents to Wight, “ who is acting as the agent of Mr. Ames in collecting them.” The plaintiff on February 14 paid to Wight the rent then due, and on March 24 paid the rent [41] due on March 1 also to Wight. On March 4 Wight made an assignment of his property for the benefit of his creditors, and on March 11 indorsed on the lease a surrender of his rights thereunder. On the same day the plaintiff was notified that Wight held no longer a lease of the premises, and that, until further notice, the rent due from him would be due and payable to the defendants. While the plaintiff testified that he never paid rent to the defendants, or to either of them, and never acknowledged either as his landlord, yet when, in answer to his own inquiry of them, after the janitor was put in possession by the defendants, as to the person to whom the rent should be paid, he is told to pay it to Wight, acting as the agent of the defendants, and he then pays the rent to Wight, it must be deemed that he pays it to the defendants. It is to be observed, also, that he did this in regard to the payment in March for the February preceding, after he was fully aware that Wight had no interest in the lease, and therefore no right, except as agent of the defendants, to the rents. Even if any doubt existed as to whether or not the possession taken by the defendants in January was for any failure to perform the covenants of the lease, the assignment made for the benefit of creditors on March 4 entitled the defendants, by the express terms of the lease, to enter and repossess themselves of the estate, and they were at that time in actual possession of the premises other than those occupied by the plaintiff. On March 11 Wight surrendered to the defendants, and the plaintiff was notified that Wight no longer held a lease of the building. The plaintiff acknowledged the receipt of this notice on March 20, and then inquired whether it was the purpose of. the defendants to give him a lease for a term similar to that held by him from Wight. He was told in reply, that the defendants hoped to lease the whole building, in which case he could undoubtedly go on as he had been doing, and that, if no such party was found, the defendants would be glad to have him remain as their tenant. The plaintiff, who remained in possession of the premises sublet to him, pursued his negotiation for a lease from the defendants by the letter from his attorney of April 10, and it was not until April 15 that he asserted a [42] right under the lease to Wight to hold the premises sublet to him without any payment of rent whatsoever. His position is, in substance, that by the surrender by Wight of the lease to him the plaintiff was entitled to hold his sublease without payment to any one; that, rent being an incident to the reversion, Wight could not collect it, because he had parted with his reversion to the defendants; nor could the defendants collect it, because, although the reversion to which it was incident had been conveyed to them, yet as soon as it was so conveyed it merged in the greater reversion in fee of which they were actually possessed. Inequitable as this result would be, there is certainly authority for the proposition, that where a lessee technically surrenders to his landlord, having had authority to grant and having granted a sublease of a portion of the premises, this surrender not only fails to prejudice the sub-lessee, but releases him, for the reasons stated, from the payment. Webb v. Russell, 3 T. R. 393. Taylor’s Land. & Ten. (8th ed.) §§ 517, 518. Grundin v. Carter, 99 Mass. 15. We do not think it applies to the case at bar upon the facts as the court was authorized to find them. It was competent for the lessors, upon the occurrence of several contingencies heretofore stated, to enter and repossess themselves of the estate, thus putting an end to all subleases. When, on the failure of Wight, they did thus enter, and when, being thus in, Wight makes an assignment of his property for the benefit of his creditors, which is one of the contingencies upon the occurrence of which the defendants were entitled to enter, and when the plaintiff thereafter pays his rent to Wight as the agent of the defendants, although for the month previous to the assignment, seeking from them in the first instance a lease for the remainder of the term of the sublease made to him by Wight, the strongest evidence is afforded that he assented to the entry of the defendants as one they might lawfully' make, with the effect of dispossessing him of the estate granted by his sublease, and that his subsequent tenancy was, at most, one at the will of the defendants. Even if, as the plaintiff contends, there is a paucity of evidence that the entry or subsequent possession was with the intent to hold the property for forfeiture, or any requisite manifestation of such intent, the conduct of the plaintiff [43] shows how it was understood by him. The defendants could have accepted a surrender of his lease from Wight without prejudice to the lease of a part of the premises, and, if such lease was assigned to them, could have maintained an action against a sub-lessee for the rent thereafter accruing. Beal v. Boston Car Spring Co. 125 Mass. 157. It is reasonable to suppose that they would have done so if they had not fully understood, as they had a right to understand from the conduct of the plaintiff, that he acquiesced in their possession of the premises, of a part of which he had a sublease, and that he treated their lease to Wight and Wight’s sublease to him as lawfully terminated, and his own possession thereafter as that of their tenant at will. The plaintiff cannot therefore recover, as he claims to do, for the rentable value of the portion of the premises (of which he was dispossessed) for the unexpired term of the sublease, either with or without deduction on account of the rent reserved in that lease. Nor are we of opinion that he can recover damages for the three months, at the end of which time only a notice to quit, had it been regularly given, would have expired, or for fourteen days, at the end of which time a notice for non-payment of rent might have been made to expire, even if it be held that he had become a- tenant at will of the defendants. Ashley v. Warner, 11 Gray, 43. After the payment made by him on March 24 for the month of February, the plaintiff not only ceased to pay rent, but in the month of April wholly denied his liability so to do, and asserted title against the defendants under the sublease of Wight to him. Through his tenants, who were either compelled to attorn to the defendants or were removed, he was dispossessed of the premises sublet to him on May 7. No notice to quit for non-payment of rent was served upon him so far as appears, and if he had become a tenant at will of the defendants, none under the circumstances was necessary. While the estate of a tenant at will can only be directly terminated in the manner provided by statute, as by a notice to quit at the end of fourteen days for non-payment of rent, or by the three months’ notice in writing, and when the rent reserved is payable at periods of less than three months by a notice equal to the interval between the days of payment, there [44] are many acts which a lessor or lessee may do which indirectly will, or may at the election of the other party, operate to determine the lease. Thus, by a conveyance, or by a written lease to a third party by the lessor, the estate of the lessee is terminated. Howard v. Merriam, 5 Cush. 563, 583. Curtis v. Galvin, 1 Allen, 215. Hildreth v. Conant, 10 Met. 298. Mizner v. Munroe, 10 Gray, 290. Upon the commission of waste by the lessee at will, the lessor may enter and determine the estate. Daniels v. Pond, 21 Pick. 367. An assignment of his estate by the lessee at will may be treated by the lessor as terminating it. Cooper v. Adams, 6 Cush. 87. King v. Lawson, 98 Mass. 309. Where the tenant denies the title of his landlord, or does definite acts inconsistent with it, as by accepting a deed from some one other than the landlord, and asserting title under it, the tenancy at will may be terminated by the landlord without any notice to quit. He may bring his action against the tenant as a disseisor, or trespasser, as if he had originally entered by wrong; or he may, if he can do so without violence, repossess himself of the premises. Russell v. Fabyan, 34 N. H. 218, 223. Sampson v. Shaeffer, 3 Cal. 196, 205. Chamberlain v. Donahue, 45 Vt. 50, 55. Isaacs v. Grearheart, 12 B. Mon. (Ky.) 231. Sharpe v. Kelley, 5 Denio, 431. Fusselman v. Worthington, 14 Ill. 135. No notice to quit is ever necessary unless the relation of landlord and tenant exists, and a disclaimer of tenancy dispenses with such notice. If one in as a tenant repudiates this relation, and denies that he holds under his landlord, the landlord may, at his own election, treat the tenancy as terminated. Tuttle v. Reynolds, 1 Vt. 80. Harrison v. Middleton, 11 Grat. 527. Duke v. Harper, 6 Yerger, 280. Boston v. Binney, 11 Pick. 1, 8. The relation of tenant at will having been established on the part of the plaintiff toward the defendants, it is clear that it was wholly renounced by the plaintiff and a title adverse to the defendants asserted, when he finally insisted on his right to hold under the sublease from Wight. Upon the facts reported and the inferences which could properly be drawn, the presiding judge was, in our opinion, justified in finding for the defendants. Judgment for the defendants.