Fitch v. Windram

Hammond, J. The agreement of October 14,1899, between Pillsbury and the plaintiff was something more than an agreement upon the part of Pillsbury to sell and on that of the plaintiff to buy the land over which this controversy has arisen. Although it is carelessly drawn, yet so far as material to this case its provisions are sufficiently clear. After describing the land and stating the amount to be paid and the time and manner in which the deed is to be delivered, it is provided that Pillsbury, the party of the first part, shall not suffer any waste or use of the said estate or receive any benefit therefrom, nor cut any wood therefrom except he first obtains consent in writing from the party of the second part,-and the former agrees also to give the latter the “use and benefits, profits, income and general rights in said estate.” It is also agreed that the former shall “not lease, nor rent, nor sell the estate nor any part thereof . . . unless with the consent ” of the latter. It is also expressly provided that the agreement shall be binding upon the heirs, executors, administrators or [72] assigns of each party. These provisions taken in connection with those respecting the interest on the amount of the purchase money to be paid, and the taxes, water rates and repairs, all go to show that this was not simply the ordinary agreement for the sale of land, where it is the expectation of the parties that the sale shall be consummated by a deed within the time reasonably required for the examination of the title or some other short period, but was rather an agreement where it was contemplated that the deed might not be called for until after the expiration of months and even years, and hence it was desirable that the rights of the parties as to the possession in the meantime should be fixed. It is contended by the defendant that there was no intention to create in the plaintiff any term in the land, that there was simply a promise on the part of Pillsbury to convey a fee upon the happening of certain conditions, that until the time came for the delivery of the deed the agreement seems to contemplate that he may be in possession, and that, inasmuch as he holds the title and possession, the relation between him and the plaintiff was that of trustee and cestui que trust, with an option of purchase by the latter. But for reasons stated above we think that this is an agreement for sale, together with an agreement for fixing the rights of the parties as to the possession during the continuance of the agreement; that in language sufficiently clear and precise the right of possession is given to the plaintiff. It is given to her by a sealed instrument and is a legal right. It is not simply an executory promise to give possession, but it is a present grant to the plaintiff of the possession, to continue during the existence of the agreement. The right given is not an estate at will, but a much greater estate, and until it is lost by the default of the plaintiff, or by the expiration or annulment of the agreement by lapse of reasonable time or otherwise, she will continue to hold it. It is stated by the judge before whom the case was tried that no time was specified within which the agreement was to be performed, and his finding for the plaintiff involves a finding that, notwithstanding Pillsbury’s conduct as set forth in the bill of exceptions, the agreement was still in force at the date of the writ. [73] By the fair interpretation of the agreement the plaintiff was entitled to reap the profits of the income of the estate either by personal occupation or by leasing the same to another. The judge found that Pillsbury knew of the lease and assented to it at the time it was made, and that the lessee entered into the occupation and use of the premises; and the finding of the judge involved a finding that the relation of landlord and tenant existed between the plaintiff and lessee under the lease. It is also 'further found that Pillsbury was never in the actual possession of the land and never occupied it at any time. Since the relation of landlord and tenant existed, and since the rights acquired by the plaintiff under the agreement of October 14, 1899, are not shown to have been terminated, the title of Pillsbury to the possession does not seem to be superior to that of the plaintiff, and therefore, even if attornment to the possessor of a paramount title or proof of the expiration of the landlord’s title since the lease was given would be a defence to an action of this kind, the facts fail to prove such a defence. Exceptions overruled.