Parkman's Adm'r v. Aicardi & Tool

R. W. "WALKER, J. In the case of Nave v. Berry, 22 Ala. 390, this court said, in substance, that when the contract of lease is silent, the law implies an obligation on the part of the lessee of a house not to put it to a use materially different from that for which it was constructed, and to which it is adapted and has been usually appropriated. It is an old principle of the common law, that a tenant is guilty of waste, if he materially changes the nature and character of the building leased. Thus, it is held, that he cannot convert a corn-mill into a fulling-mill, or a water-mill into a wind.mill, or a log-wood-mill into a cotton-mill, or a dwelling-house into a warehouse, or a brewhouse into an office. — Bridges v. Kilburn, 5 Vesey, 689 ; Kidd v. Dennison, 6 Barbour, 13 ; Jackson v. Andrews, 18 Johns. 433 ; 1 Eden’s Inj. 186, and notes ; Addison on Contr. 380 ; Shepard v. Briggs, 26 Vermont, 449. And many authorities, both English and American, declare that such changes will be deemed waste, even though the value of the property would be enhanced by the alteration. — Authorities supra; also, 11 Metc. 304. A court of equity will restz’ain the lessee, or his sub-lessee, from making such material alterations as would change the nature of the building. — Douglass v. Wiggins, 1 Johns. Ch. 335 ; Bonnett v. Sadler, 14 Vesey, 526; 2 Story’s Eq. § 913; Maddox v. White, 4 Md. 72. In the view we take of this case, we need not inquire [397] whether the use of the room in question as a place for retailing spirituous liquors, and the changes in its internal arrangements necessary to prepare it for such use, would constitute such a material alteration of the nature of the building, such a wide departure from the use for which it was erected, and to which it has been usually appropriated, as would, of itself, justify the exercise of the preventive power of a court of chancery. We prefer to rest our decision upon other and much less doubtful grounds. In the exercise of the inherent power which it possesses in eases of fraud, a court of chancery will interfere by injunction, to prevent a party from availing himself in any manner of a right or title arising out of a breach of contract, trust, or confidence. — Prince Albert v. Strange, 1 McNaghten & Gordon, 25, (cited in 3 Chitty’s Eq. Dig. 2274, § 3;) Norway v. Rowe, 19 Vesey, 154. It appears from the bill, that at the time Bayol rented the house from Goldsby, the relation of landlord and tenant existed between them ; a relation which, in the estimation of a court of equity, so far partakes of a fiduciary character, that in all transactions between the parties in reference to the property, the utmost good faith is required. “ If there is any misrepresentation, or any concealment of a material fact, or any just suspicion of artifice or undue influence, courts of equity will interpose and pronounce the transaction void, and, as far as possible, restore the parties to their original rights.” — 1 Story’s Eq. §§ 218, 323; Willard’s Eq. 170, 189. Bayol rented the house for the purpose of sub-letting it to Aicardi & Tool, to be used by them as an establishment for retailing spirituous liquors. lie did not disclose to Goldsby the use to which he meant to appropriate the house, and must, under the circumstances, have known that Goldsby supposed it was to be occupied for the same purposes as under the former lease. It is further alleged, that Bayol well knew at the time he obtained the lease, that if the purpose for -which the house was really rented should be disclosed to Goldsby, the contract would not be made; and it is shown that it was at the instance of [398] Aicardi & Tool that Bayol rented the house in his own name, and failed to make known to Goldsbythe purposes for which it was wanted. Assuming that the history of these transactions furnished by the bill is correct, whatever right Aicardi & Tool have acquired has been obtained by an abuse of confidence, and is the fruit of a-fraudulent combination between themselves and Bayol, formed for the purpose of entrapping Goldsby into a bargain, which they knew he would not have made, if advised of the secret intentions of the parties. If they áre permitted to assert and enjoy the right thus acquired, the result will be, that the value not only of this particular apartment, but of other rooms in the same tenement, for the special purposes for which they have been erected, prepared, and used, will be materially impaired. 'While it is undoubtedly true, that a licensed retail grocery has the express sanction of law, and therefore cannot.be pronounced per se a nuisance; yet we cannot so far ignore matters universally known, as not to take notice cif the fact, (of which there is indeed an express allegation in the bill,) that the occupation of a house for the purpose of retailing spirituous liquors has a tendency to render the adjoining rooms less desirable, and therefore less valuable as dry-goods and book-stores and lawyers’ offices. It may be that the injury in the case would hot be irreparable; nor, under the circumstances alleged, need it be. The equity of the bill rests, not upon the ground of nuisance or irreparable injury, but upon the inherent right of a court of chancery to prevent a party from asserting rights arising out of a violation of fiduciary duties, or procured by a fraudulent combination. Under the circumstances disclosed by this bill, we have no doubt of the right of Goldsby to an injunction restraining the parties from taking possession. — Bonnett v. Sadler, 14 Vesey, 526-7 ; Coffin v. Scott, 7 Robinson, 205 ; Att’y Gen’l v. Aspinall, 2 Myl. & Cr. 613, 625; Prince Albert v. Strange, supra; Norway v. Rowe, supra; O’Herlihy v. Hedges, 1 Sch. & Lefr. 123. 2. It remains to be considered, whether the complainant has such an interest in the subject-matter of this suit, [399] as gives her a title to relief. It was held before the Code, that the administrator of an insolvent estate cannot recover the possession of lands belonging to the estate by action at law. — Long v. McDougald, 23 Ala. 419; Patton v. Crow, 26 Ala. 412. This is now changed by statute.-Acts ’57-8, p. 298. If the facts are as the complainant alleges, the estate represented by her had an undivided half-interest in this property, and a right to one half pf the rents accruing before or after the death of the intestate. It is the duty of the administratrix to.collect the share of the rents to which the estate is entitled, and to sell its undivided interest in the property. "Whatever, therefore, would injure the value of the property, or lessen the rents, would diminish the assets of the estate. The bill shows, then, that the assets of the estate, which the complainant is to administer for the benefit of creditors, will be materially reduced, if the defendants are allowed to enjoy the right which they assert. This is an interest which a court of equity will recognize and protect. — 2 Story’s Eq. § 914. 3. While at law, all persons having a joint interest must join in the action as plaintiffs ; in equity, the general rule is, that it is sufficient if all the parties interested in the subject of the suit are before the court, either as plaintiffs or defendants. — 1 Dan. Ch. Pr. 273. If it be assumed that the present case is an exception to this rule, and that G-oldsby should have been joined as a complainant, unless a sufficient excuse is shown for not doing so, we think that his absence from the State constitutes such excuse. See Morse v. Hovey, 9 Paige, 197. The questions arising upon the demurrer were the only questions considered by the chancellor, and we have confined ourselves within the same limits. We think that the chancellor erred in sustaining the demurrer and dismissing the bill. The decree is reversed, and the cause remanded.