Warren v. Wagner

BBIOKELL, O. J. A married woman, having a statutory-separate estate, is relieved of the disabilities of coverture by decree of the chancellor, rendered in pursuance of the statute (Code of 1876, § 2731). Subsequently, with the concurrence of her husband, manifested by his joining in the execution of the lease, she leases her lands for a term of years, taking notes payable to herself alone, for the installments of rent as they accrue according to the lease. Two questions are raised upon this state of facts: First, is the lease valid; secondly, can the wife in her own name maintain an action at law for the recovery of the rents as they fall due. The effect of the statute, and of the decree of the chancellor rendered in conformity to it, has been of frequent consideration in this court; and, as is insisted by counsel for appellant. the statute has been regarded as- enabling the wife, as enlarging her capacity to contract, and her capacity to sue and be sued alone, only to the extent, and for the purposes specified. It has not been construed as conferring a capacity to contract generally; nor a capacity of suit, otherwise than as it may result from her contracts or engagements, entered into in the exercise of the right with which she is invested.—Dreyfus v. Wolffe, 65 Ala. 496 ; Holt v. Agnew, 67 Ala. 360 ; Ashford v. Watkins, 70 Ala. 156. The right or power with which she is invested, in the words of the statute, is, “ to buy, sell, hold, convey and mortgage real and personal property, and to sue and be sued as a feme sole.” Though the right or power to lease lands is not in express words conferred, a construction of the words sell and convey, which would not include it, would be exceedingly narrow and illiberal, rendering the statute an abridgment, rather than an enlargement of the power over her lands, which the wife, in conjunction with her husband, could exercise, either at the common law, or under the preexisting statutes, which disable the husband from taking title to her property of any kind, and confer upon her capacity to hold it as if she were a feme sole. The common law, upon marriage, “ without the birth of issue, casts upon the husband an estate in all the wife’s real property in possession, whether of inheritance or of freehold for life, during the joint lives of himself and wife.” — 1 Bish. Mar. Women, § 529. The death of the wife, or the death of the husband terminated the estate. If there was issue born alive of the marriage, capable of inheriting the estate, the estate of the husband endured for his own life. Without the concurrence of the wife, the husband could bargain, sell and — 198 — convey bis estate in her lands; and the larger power included the less of leasing them, reserving the rents to himself alone. The term created by the lease could endure only during the continuance of his estate; for the principle of the common law was inflexible, “that no man could grant alease to continue beyond the period at which his own estate was to determine.” 4 Kent, 116. The wife was incapable of leasing her lands, and her lease, like her conveyance in fee, was void, not voidable, as was the lease of an infant; void, not only because the present interest was in the husband, but because coverture disabled her from binding her estate, or binding herself personally. In the absence of statutes authorizing a lease of the lands of the wife by husband and wife jointly, they could join in a lease, and, during the continuance of the estate of the husband, it’was valid and operative. Upon the expiration of his estate, the lease was voidable, not void f the wife surviving, or, in the event of her death her heirs, had the election to affirm or dis-affirm it; an acceptance of rent was an affirmance. — 1 Bish. Mar. Women, §§ 538-45. Statutes, expressed in general terms, empowering husband and wife to convey her lands, included the power of leasing them; and a lease, executed in the mode prescribed by the statutes, was binding upon the wife, or her heirs, after the death of the husband and the expiration of his estate. — 1 Bish. Mar. Women, § 549 ; Jackson v. Holloway, 7 Johns. 81; George v. Goldsby, 23 Ala. 326. In Jackson v. Holloway, supra, said Thompson, J.: “The wife may, during coverture, part with the whole, or any portion of her interest in real estate, if the deed be acknowledged in the mode prescribed by the statute, concerning the proof of deeds. The words of the act are general, extending to any estate of the feme covert.” The statute creating and defining the separate estates of married women, and the provisions of the Constitution preserve to the wife the capacity of taking and' of holding property, notwithstanding coverture, and operate to deprive the husband of the right he had by the common law of taking and of holding property owned by her at the time of marriage, or to which she subsequently,became entitled. In very general terms, it is declared : “ The property of the wife, or any part thereof, may be sold by the husband and wife, and conveyed by them jointly, by instrument of writing, attested by two witnesses.” The acknowledgment of the conveyance before an officer authorized to take acknowledgments of conveyances, is the equivalent of an attestation by two witnesses. — Code of 1876, §§2707-08. The statute has not been construed as empowering husband and wife to mortgage the estate of the wife; for a power simply to sell and convey, does not include a power to mortgage, unless — 199 — there is “something added over and above, showing that the power of sale is not to be taken in its primary sense, but means a power to mortgage.”—Bloomer v. Waldron, 3 Hill, 361. It is not an absolute, unconditional sale, a sale outright, which is authorized ; a conditional sale is equally within the meaning of the statute.—Peeples v. Stolla, 57 Ala. 53. A lease is a sale and conveyance of a partial, qualified, limited interest in lands. It is defined as “ a species of conveyance for life, for years, or at the will of one of the parties, usually containing a reservation of rent to the lessor.” — Taylor’s Land, and Ten. 314. There can be no good reason assigned for compelling husband and wife to a sale, absolute or conditional, of the entire estate or interest, when a lease for a term, conveying a limited interest, the reversion remaining in the wife, would be more beneficia,! to them. The lease for a term that may possibly endure beyond the life of husband and wife, may be necessary to preserve the estate from waste, or to make it a source of income. The estate, as is the fact in reference to the premises, the subject of present lease, may be fitted and adapted to uses requiring an outlay of capital, or skill and experience to manage and operate them profitably. Neither husband nor wife may have the skill and experience, or they may not have the capital, or, if they have it, may be unwilling to appropriate it to these uses. The interests of the wife, the preservation of her real estate, will often be best promoted b} leasing it, rather than by sale, converting it into some other species of property. AÍ1 principles of just construction require that the general words of the statute, authorizing a sale and conveyance of the wife’s statutory estate, should be interpreted as comprehending a lease, which is a sale and conveyance of a qualified, partial interest, in contradistinction of a sale and conveyance of the entire estate. Construing the statute investing a married woman relieved of the disabilities of coverture with the right to buy, sell, hold, convey and mortgage real and personal property, as similar statues are construed, we must hold, that she has capacity, in conjunction with her husband, to make a valid lease of her lands for a term of years. If the statute were not so construed, though its plain purpose is to enable the wife to enlarge her capacity' of contracting, and of conveying her property, it would operate an abridgment of a power she could have exercised at common law and under pre-existing statutes. The capacity of the wife to sue and be sued alone is co-extensive with her capacity to contract or convey, as it is defined by the statute. Having authority to make the lease in conjunction with her husband, the rents could properly be reserved to her alone, — 200 — and for them she may sue alone, not joining her husband. The demurrer to the first plea was properly sustained. It has repeatedly been decided that when a party offers evidence as a whole, parts of which are admissible, and parts inadmissible, the court may, without error, overrule the entire proposition. The duty of separating and distinguishing the admissible from the inadmissible parts can not be cast upon the court without its consent. — 1 Brick. Dig. 887, § 1202. There is much of the evidence of the witness Holt, proposed to be introduced, which consists of conversations between himself and the defendant, not parts of the res gestae, and had in the absence, and without the knowledge of the plaintiff. These conversations were plainly inadmissible; if it be, that there are other parts which are admissible, they were not pointed out in the circuit court, and an offer made to introduce them separately. The representation of the husband, pending the negotiations for the lease, and prior to its execution, seems to have been limited to the legal effect and operation of a particular clause or covenant, and not to the lease taken in its entirety. The clause or covenant to which the representation related, was that by which the lessee stipulates that he would “ deliver up the said leased premises, with all the machinery and other things mentioned in the schedule hereunto attached, to the said Mary B. Wagner, her heirs or assigns, and quietly, at the expiration of the said term of three years, in as good order and condition as the same now are, reasonable use and wear and tear excepted.” The representation was, that this clause or covenant did not impose a liability upon the lessee to repair or to restore, if there was by fire, or other unavoidable accident, a destruction of the premises, or a material part thereof, during the term. If the representation was (as we are now bound to regard it) confined to the legal effect of this particular clause, and was without reference to the lease in its entirety, it was not untrue. In all leases it is implied, if it be not expressed, that the lessee will pay the rent as it accrues, will make tenantable repairs, will avoid the exposure of the premises to ruin or destruction by acts of omission or commission, and, on the expiration of the term, will quietly surrender- possession.' In the absence of an express covenant, he is not amenable because of the deterioration of the premises from the ordinary wear and tear incident to their reasonable use; nor, if by unavoidable accident, or by the net of God, 'or by the act of a public enemy, there is injury to, or a destruction of the premises, is he bound to repair or restore. Taylor’s Land. & Ten. § 343; Nave v. Berry, 22 Ala. 382; U. S. v. Bostwick, 94 U. S. 53 ; Warner v. Hitchins, 5 Barb. 666. A covenant on the part of the lessee, like that we are now con — 201 — sidering, that, upon the expiration of the term, he will return or surrender possession of the premises in the same condition they were when he entered into possession, the usual or natural wear and tear excepted, is not a covenant to repair or rebuild; it is but the expression of the implied obligation or duty resting upon him.—Authorities supra; Maggort v. Hansbarger, 8 Leigh, 532; Howeth v. Anderson, 25 Texas, 557. In this view, there was no misrepresentation, and the evidence was irrelevant. It is the settled practice to entertain a motion- for the exclusion of evidence, which is not merely secondary, but in itself illegal, or irrelevant, at any stage of ¡the cause before the retirement of the jury. — 1 Brick. Dig. p. 887', §§ 1190,1197. Whether the lease taken in its entirety contains any covenant binding the lessee to rebuild or restore, if there was injury to, or destruction of the premises, without fault or neglect on his part, is not a question now presented. If such obligation is imposed, and, as is most probable, the representation of the husband had reference to the lease in its entirety, whether it was the expression of an opinion upon matter of law, as distinguished from the representation of matter of fact; and if it be the representation of matter of law, whether it was not fraudulent, as proceeding from a party having superior means of information, professing a superior knowledge of the law, upon which the lessee relied, in ignorance and in confidence, trusting to the truthfulness of the husbánd, and thereby enabling the lessor to gain an unconscionable advantage, are not inquiries now involved. Nor do we see that they can arise in this cause, or unless there should be an effort to enforce the clause or covenant of the lease, which imposes the obligation. There is no possible aspect of the case in which the evidence was not irrelevant, and it was properly excluded. A lessee of premises destroyed during the term by unavoidable accident is not excused from the performance of an express provision or covenant to pay rent for the term, unless he has protected himself by an express stipulation for the cessation of rent in that event, or the landlord has covenanted to repair or rebuild.—3 Kent, 603 ; Taylor’s Land. & Ten. §§ 372-75, 377; Chamberlain v. Godfrey, 50 Ala. 530. A limitation, or rather an exception to the general rule, which seems to obtain, and has been specially applied to leases of apartments in a tenement, or to leases of tenements for particular uses, is, that the destruction must not be of the entire subject-matter of the lease; there must be remaining something capable of holding and enjoyment by the lessee. The value of the premises may be diminished; they may be rendered incapable of yielding the benefit it was expected to realize from their use and occupation. So long as the thing is capable of holding under the lease, the — 202 — obligation and duty of paying the rent continue. — Chamberlain v. Godfrey, supra; McMillan v. Solomon, 42 Ala. 356. Whether this limitation or exception to the general rule, holding a lessee to liability upon his express and unconditional promise or covenant to pay rent, is not, as it has been usually applied, confined to a lease of tenements for particular purposes, or to the apartments of a tenement, and can not be extended to a lease of lands and tenements, is not now of importance. This «lease is of lands and tenements, accompanied with the right of quarrying stone upon the lands during the term. The only injury or destruction upon the premises was of the limekiln, the.rise of which, it may be, .was the principal consideration moving the lessee to enter into the lease, and it was probably the thing from which it was expected the principal profit would issue. The lands and the tenements remain, capable of use and enjoyment, and the right of quarrying stone continues. It would be a latitudinous construction of the exception, not warranted by authority, that would draw this case within its influence. There is no error in the several rulings of the circuit court upon this point. The eviction of a tenant consists in the disturbance of his possession, his expulsion or amotion depriving him of the enjoyment of the premises demised, or any portion thereof, by title paramount, or by the entry and act of the landlord. The eviction may operate a bar, partially or wholly, to the right to demand rent falling due in the future. — Taylor’s Land. & Ten §§ 378-88. If it be from a part only of the premises, by title paramount, the rent is discharged partially, in proportion to the value of the premises of which the tenant is dispossessed. But if the eviction is the act of the landlord, the entire rent is suspended during its continuance, for the reason that a man can not apportion his own wrong, and the landlord shall not so apportion his tortious act and entry, as to compel the tenant to pay rent for the part of the premises upon which he does not enter.—Royce v. Guggenheim, 106 Mass. 201 (8 Am. Rep. 322); DeWitt v. Pierson, 112 Mass. 8 (17 Am. Rep. 58, note); Crommelin v. Thiess, 31 Ala. 412 ; Chamberlain v. Godfrey, 50 Ala. 530. A mere trespass by the landlord upon the premises, not intended by him as a permanent amotion or expulsion of the tenant, or to deprive him of the possession and enjoyment of the premises, may entitle the tenant to recover damages, but it will not amount to an eviction. Taylor’s Land. & Ten. § 380 ; Lounsbery v. Snyder, 31 N. Y. 514 ; Edgerton v. Page, 20 N. Y. 281; Lynch v. Baldwin, 69 Ill. 210. If the damages are capable of legal measurement by a pecuniary standard, as if they consist,only of the value of use and occupation during the continuance of the trespass, — 203 — they would form proper matter of set-off to an' actioii by the landlord for the recovery of rent.—Cage v. Phillips, 38 Ala. 382; Holley v. Younge, 27 Ala. 203; Kannady v. Lambert, 37 Ala. 57. Or if the damages are unliquidated, and not capable of legal measurement by a pecuniary standard, they will form matter for recoupment in an action by the landlord for the recovery of rent.—Lynch v. Baldwin supra ; Batterman v. Pierce, 3 Hill, 171. The eviction, or the trespass, may be the act of the landlord in person, or it may be the act of a servant or agent, for which he is answerable upon the general doctrine holding a principal liable for the misfeasances or torts of a servant or agent. — Story on Agency, § 452. Direct or positive evidence that the wrongful act, whether it be of eviction or of trespass, was done under the authority, or by the consent of the landlord, is not necessary. Such evidence is "not often attainable, and the fact, like any other controverted fact, is capable of proof by circumstances. The nature and character of the act, taken in connection with the relation of the landlord to the actor; his employment or agency in the business of the landlord ; and the acquiesence of the latter in former acts, accompanied by circumstances indicative of his knowledge that the act was done, or continued, aud the absence of objection upon his part, are facts which must he considered by the jury, whose business it is to determine the inquiry, whether he authorized or assented to the act complained of as wrongful. McClung v. Spotswood, 19 Ala. 165 ; Krebs v. O'Grady, 23 Ala. 726 ; Gimon v. Terrell, 38 Ala. 208. When the landlord enters and dispossesses the tenant of a part of the premises, a discharge of the entire rent will not result, unless it be shown that the tenant surrendered or abandoned possession 'entirely. Nothing less than an entire abandonment or surrender will operate a dissolution of the tenancy, and a suspension or discharge of the whole rent. The ré’nt is discharged only pro tanto, to the extent of the value of the use and occupation of the part of the premises of which the tenant is dispossessed, if he remains in undisturbed possession of the residue.—Crommelin v. Thiess, 31 Ala. 412; Chamberlain v. Godfrey, 50 Ala. 530 ; Willard v. Tillman, 19 Wend. 358. The fifth instruction to the jury, given at the request of the plaintiff, in-view of the rules we have stated, is misleading in its tendency, if not in all respects erroneous. It must be admitted, as is affirmed in the instruction, that the burden of proving an eviction rested upon the tenant. It is affirmative matter of defense, the onus of proving which rests upon the party pleading or relying upon it, in discharge of a legal obligation. When the law casts upon a party the burden of proving a fact, for all the purposes of a particular case, the fact can — 204 — not be supposed to exist, if the evidence of its existence does not satisfy the minds of the jury. This is not the only proposition the instruction embodies and affirms ; it proceeds to declare that the jury must be satisfied “that Mrs. Wagner, the plaintiff in this cause, did actually evict Warren from the premises, by taking possession thereof, and denying or refusing Warren the right to use or occupy the said premises under the lease.” Instructions given or refused must be taken and construed in connection with the evidence, for it is to the evidence the jury are expected to, and will apply them. The ■eviction, or trespass, whichever it may be ascertained is its true character, the evidence tends to prove, was not the personal act of Mrs. Warren, but of her husband, and her responsibility for it is to be traced to the fact (if the fact be shown) that she authorized or assented to it. The only interpretation of the instruction, in view of the evidence, is that her personal act only, not the act of another, authorized or assented to by her, will amount to an eviction. An eviction is not necessarily an actual, forcible taking possession of the demised premises, or any part thereof, nor does it necessarily consist in the expulsion of the tenant; nor need it be attended with a denial or refusal to permit the tenant longer to occupy under the lease. Lounsbery v. Snyder, 31 N. Y. 514; Edgerton v. Page, 20 N. Y. 281; Taylor’s Land. & Ten. § 381. The duty and obligation of the tenant to pay rent result from his beneficial enjoyment of the premises, unmolested by the landlord. There is molestation, relieving him from the duty and obligation, whenever the landlord, personally, or through the act of another, however quietly, enters upon, and possesses himself of the premises, or any part thereof. The possession itself, taken and continued, though it may be in the absence, and without the knowledge of the tenant, is inconsistent with his possession and beneficial enjoyment, which the landlord is bound not only to abstain from molesting, but to maintain. There is no duty resting upon the tenant to demand of the landlord restoration, and, of consequence, there can be no necessity for a refusal to restore, as an element of eviction. Yet, such is the irresistible inference from the instruction. If the landlord, by himself, or by the entry of another, which he authorized, or to which he assents, enters upon, and tabes possession of a material portion of the premises, the entry and possession, at the election of the tenant, is an eviction from the whole, authorizing an abandonment of the lease, and absolving the tenant from the payment of rent falling due in the future. But if the tenant elects, he may remain in possession of the residue of the premises, and if he makes the election, the tenancy is dissolved only partially, and the discharge of rent — 205 — is only partial. The entry and possession of the landlord, or of another by his authority, or with his assent, though there is no actual, or forcible, or physical expulsion of the tenant, is of itself an eviction. "While the tendency of the instruction is misleading, we do not say that, of itself, it should operate a reversal of the judgment; perhaps, the defendant ought to have asked an explanatory charge, obviating the misleading tendency. The seventh and eighth instructions, requested by the defendant and refused by the circuit court, affirm only the propositions which we have heretofore stated, that the agency of the husband, or the assent of the wife to his act may be proved by circumstances, and that it may be inferred from his employment in the transaction of her business, and her acquiescence in his former acts in reference to the leasing of the premises, tlieir relationship, and the nature and character of the act imputed to him. The inference, or implication is of fact, to be drawn by the jury ; it is not an inference or implication of law. It is the province of the jury to determine whether the facts show tlie agency or authority of the husband, or the assent of the wife to his act. The facts and circumstances are competent evidence for their consideration in determining the existence of either or both facts; whether it be sufficient rests in their judgment. The errois to which we have adverted compel a reversal of the judgment. Keversed and remanded.