Cooney v. Hayes

The opinion of the court was delivered by Peck, J. The right of the plaintiff to maintain this action qf ejectment depends upon the rights of the parties under the deed executed by the defendants John Hayes and his wife Mary Hayes, to the plaintiff, January 9, 1866. The action is to recover that portion of the premises conveyed by that deed, of which the defendants, Catlin and Gordon are, and since October 19th, 1866, have been, in the exclusive possession under a lease from the said John Hayes for the term of four years from October 19, 1866, the date of the lease ; Hayes and his wife,'the grantors in the deed to the plaintiff, having from the date of that deed continued to.reside, and still residing upon, and personally occupying, the other portion of the granted premises, [482] including the dwelling-house, called in the ease, their homestead. The right of the plaintiff to recover mtist be determined by the construction of the reservation in the deed. The reservation is this: “ Reserving to ourselves the right to use and occupy the said granted premises for five years if we choose to do so for that length of time, from the date of this deed ; but if we leave the possession and occupancy of said premises before the expiration of said five years, then this reservation shall be at an end and determine, and the grantee above named shall have full possession thereof.” Incidentally in the course of the argument there has been some discussion of'the question whether this is to be regarded as a reservation or an exception. No time need be spent in tracing the line of distinction between a reservation and an exception, merely for the purpose of giving this provision in the deed a name; because whatever it may be called, it is a provision intended to secure a right in the grantors that otherwise would pass to the grantee by the deed, and we are not aware of any rule of law to prevent giving effect to it according to the intent of the parties, to be gathered from the nature of the subject matter and the language used. It is insisted on the part of the plaintiff that the reserved right to use and occupy the premises is only a personal right, and that whenever; and so far as the grantors cease to occupy the premises personally, the reservation is to that extent at an end, and the plaintiff has a right to enter. There is nothing in the relation of the parties to each other, nor in their relation to the property, nor in the nature and character of the right reserved, that shows it to be a mere personal right. It is true the owner of the reversion in real estate, and a landlord in leasing such property, may have a choice in tenants. Some he may prefer an account of their habits of caution and prudence, in view of the manner in which they would be likely to use and occupy the premises. But considerations of this character are not deemed in law sufficient .to limit the tenant to a right of personal occupancy. A tenant has a right to occupy by himself, his agent or assignee, unless restrained by express stipulation in the lease. The word assigns is not necessary to give this right. So far as the nature of the right, and the relation of the parties to the prop [483] erty bears upon the question in this case, no reason is perceived why the same principle should not apply as in case of landlord and tenant under a lease ; the same as if this deed had been absolute without any reservation, with a separate lease to the grantors in the deed, in the terms of this reservation. Where neither the right nor duty is in its nature of a personal character, they may generally be made so by stipulation, but in such case the language ought to be reasonably clear and explicit to that effect, otherwise no such limitation should attach. The question therefore is whether the language in this case imports a right to the use and occupancy personal only to the grantors, or a general right with its ordinary legal incidents. The words, “ the right to use and occupy,” are equivalent to the right to the use and occupancy, and import a general right in the grantors to use and occupy either by themselves or others ; limited only by the implied legal duty to occupy in a prudent manner. But the whole language must be taken together in order to see whether the import of the words referred to, is restrained by other words in the instrument. The words, “ if we choose to do so that length of time,” &c., have some tendency in favor of the construction contended for by the plaintiff, as they might be more likely to be inserted if only a right of personal occupancy was intended, than if a general right was designed to be reserved; but this is by no means decisive of the construction. It is urged by the plaintiff’s counsel that the word possession is of itself of a personal character, as possession by a tenant is not such a possession by the landlord as will enable him to maintain trespass against a stranger. But for some purposes the possession of a tenant is the possession of the landlord. It is so for the purpose of acquiring title by adverse possession. But neither of these technical considerations have much bearing on this question of construction. Upon the whole language of the reservation, we think the right to the use and occupancy of the premises is not merely personal, but general, with the common legal incidents of such a right, one of which is the right to occupy personally or by a tenant. But even if the right is only a right of personal occupancy, the contingency has not happened upon which it was to terminate so as to give the plaintiff a right of entry, even as to the portion of the [484] premises leased to Catlin. It is not every breach of covenant or of duty by a tenant in possession, that will give the reversioner a right to re-enter, unless the right of entry is secured by a stipulation to that effect. The provision as to the right of entry by the plaintiff, is, that “ if we leave the possession and occupancy of said premises* before the expiration of five years, then this reservation shall be at an end and determine, and the said grantee above named shall have full possession thereof.” The grantors have not left the possession and occupancy of the premises, but still reside there occupying the dwelling-house and all that portion of the premises not leased to Catlin. It is not claimed by the plaintiff’s counsel that the reservation has come to an end or determined, except as to the portion of the premises leased to Catlin. It is only in the event that the reservation shall come to an end and determine, that the plaintiff is by the terms of the reservation to have the right to enter; and then he is to '■'’have full possession” of the premises, which means the entire premises. No provision is made for a termination of the reservation in parcels by territorial limits, and none can be implied. It is wholly at an end or wholly in force as to the whole premises ; and whenever the plaintiff’s right of entry accrues, it entitles him to possession of the entire premises. No right of entry has yet accrued. It could hardly be claimed that if one only of the grantors had ceased to occupy the premises, it would terminate the reservation and give a right of entry, and we think leasing a portion of the premises, for a portion of the five years, can have no such effect. What the result would be if the right of occupancy were merely personal, and substantially the whole premises were thus leased, the part reserved trifling, and the transaction calculated to evade the provision, in reference to the termination of this reservation, we are not called on to decide. Upon both these grounds the judgment is reversed and judgment for defendants.