Alger v. Kennedy

The opinion of the court was delivered by Ross, J. The defendant’s notice, in substance, avers, that the lease did not include the sub-collar, and that the plaintiff, though frequently notified, allowed the sub-cellar to be and remain in such a condition through want of proper drainage, that the whole tenement was rendered unhealthy, unsafe, and unfit for occupation, and that therefore the defendant lawfully abandoned it before the expiration of the time limited in the lease. The plaintiff excepted to the admission of testimony in support of the notice, on the grounds that it would contradict the lease, and, if established, would not amount to an eviction. The description in the lease of the grant, is, “ The premises on the c’orner of College street and Center street recently occupied by E. Laporte as a French hotel. (The joiners’ shops are not included, but when vacated, Kennedy is to have right to either or both at same rent they now draw, payable quarterly in advance) $75 and $112 respectively.” It is a well-recognized rule, that the language of a grant shall be so construed that “ every word (if it may be) may take effect, and none be rejected.” 1 Shep. Touch.'87. Again, a particular description, following closely in the same sentence and clause words of general description, is to be construed as a restriction or limitation of the general description. “ If one grant his manor of Dale, in Dale, which in truth doth extend in Dale and Sale; in this case no part of the manor that doth lie in Sale shall pass. So, if the manor lie wi.thin the parishes A, B and C, and the grant is of the manor of Dale, lying within the parishes A and B, by this grant no part of the manor lying in C will pass.” “ If one grant all his lands in B and elsewhere in the county of S, in the tenure of J. S., by this grant nothing doth pass but that which is in the tenure of J. S.” 1 Shep. Touch. 99. The clause, “ Which were lately in the occupation of A. B.,” following a general description, is a restriction only where the clause is general, and is all but one and the same sen [117] tence, and not ended as certain before the end of the sentence.” Swift et al. v. Eyres, Cro. Car. 548. Where a grant is in general terms, the addition of a particular circumstance will operate by way of restriction or modification of such grant. Roe d. Conolly v. Vernon and Vyse, 5 East. 51; Tenney v. Beard, 5 N. H. 58; Barnard v. Martin, Ib. 536 ; Woodman v. Lane, 7 N. H. 241; Flagg v. Bean, 25 N. H. 49; Bell v. Sawyer, 32 N. H. 72; Nutting v. Herbert, 35 N. H. 125. The grant of “ the premises on the corner of College street and Center street ” is very general. The technical legal meaning of premises, when used in connection with a grant,. includes all that part of the deed which precedes the habendum. 1 Shep. Touch. 75; Brown v. Manter, 21 N. H. 528 ; 2 Washb. Real Prop. 612. It is sometimes taken for the thing demised or granted by the deed. 1 Shep. Touch. 75. It is evidently used in the lease in the latter signification, and in this signification is a word applicable alike to a manor, a farm, a building, or a tenement of one or two rooms in a building. In and of itself, it defines nothing, but must be aided by other words giving definiteness of description to the thing granted. The words “ on the corner of College street and Center street,” locate the grant, but do not limit or define it. The words which closely follow, without the intervention of a comma even, “ recently occupied by E. Laporte as a French hotel,” are not repugnant to what has preceded, but give definiteness and set limits to what has before been indefinitely and generally described as “ the premises.” Under the rules and decisions already stated, we think these latter words are restrictive, and limit the grant. Whether such language is to be construed as restrictive of what has preceded, depends more upon the connection and manner in which it is used, than upon the exact language used. When following a definite description, or when repugnant'to a preceding desci’iption, or when manifestly added by way of further description, different rules of construction, and different considerations control the effect to be given them. Doe v. Burt, 1 T. R. 701; Sargent v. Adams, 3 Gray, 72; Mitchell et al. v. Stevens, 1 Aik. 16; Putnam v. Smith, 4 Vt. 622; Hibbard v. Hurlburt, 10 Vt. 173. [118] The plaintiff insists that the exception of the joiner’s shop, which follows in a separate sentence, shows that all the plaintiff owned at the corner of the streets named, was intended to pass by the lease. But that does not follow. A similar exception was claimed to control in Doe v. Burt, but the court refused to give it such significance. Besides, it was necessary to mention the joiner’s shops, inasmuch as they were to pass by the lease, when the then tenancy expired, if the defendant so elected. The County Court, therefore, correctly construed the language of the lease, and properly admitted parol testimony to show what Laporte occupied as a French hotel. That was a question of fact, to be determined by the jury on the evidence, as much as are the boundaries, extent, or identification of any grant. The language of the lease is clear and plain on the face of it. When doubts arise in applying the language to the thing granted, extrinsic or parol evidence is admissible to resolve the doubts. Putnam v. Smith, 4 Vt. 622; As there was testimony tending to show that the sub-cellar was not occupied by Laporte under his lease, as well as tending to show that he occupied it somewhat, the County Court properly submitted that question to the determination of the jury. II. But it is insisted that if the sub-cellar was not included in the lease, the plaintiff’s suffering it to remain in the condition that the defendant’s evidence tended to.establish, did not create an eviction ; that to work an eviction, the .plaintiff must do some positive overt act, and not merely neglect to do some act that he was in duty bound to perform. We do not think this position tenable. A careful reading of the authorities relied on by the plaintiff shows that any act or default of the lessor that renders the tenement such as endangers the life or health of the occucupants, may be treated by the lessee as an eviction, and give him the right to abandon the premises, and terminate his obligation to pay rent. If the sub-cellar was in the control of the plaintiff, it was his duty so to keep it that its condition would not render the tenement leased to the defendant unsafe for occupation. His default in the discharge of his duty in this respect, would be as injurious to the defendant as ii he deposited the offensive matter [119] in the sub-cellar. If A rents to B the second story of a house for a term of years, he cannot suffer, through neglect to repair, the first story to become ruinous, so that the house is liable to fall and kill B and his family, and still hold B bound to occupy and pay rent. There is no legal difference between such a default and tearing down the first story. We think the attempted distinction is without a legal difference, and that the County Court correctly admitted the evidence under the notice. III. The plaintiff’s requests were properly refused. , If the plaintiff’s default in repairing and cleansing the sub-cellar gave the defendant the right to abandon the premises, he was thereby' discharged from the obligation to pay rent. The right to collect rent is concurrent with the lessee’s right and duty to occupy the leased premises. When the lessee lawfully ceases to occupy, he is discharged from his obligation to pay accruing rent. This is so, whether the rent is payable in advance or at the end of the term. If, having received the rent, the lessor unlawfully evict the lessee, by such eviction he becomes liable to pay back at least so much of the rent received as answers to the time for that he has wrongfully deprived the lessee of the occupation of the premises. IY. The plaintiff excepted to the charge of the court, and claims that the court erred in submitting to the jury to determine whether, if the sub-cellar was included in the lease, it was the duty of the defendant, under the stipulation to repair' and keep the premises in repair, to have put the sub-cellar in a suitable and healthy condition. The defendant claims that what was said by the court in the charge on this point, was by way of argument and illustration, instead of submitting to the jury the determination of the fact of whether what was required to be done to the sub-cellar was a repair within the stipulation in the lease. We think a fair construction of the charge is as claimed by the plaintiff. In addition to repeatedly asking the question in different forms, whether the place can be considered in repair which has a cellar in such a condition under it, in restating the questions, the [120] court tells the jury, “ the fault is his [defendant’s] own if it was not repaired and taken care of, provided you find that to have cleared out that drain would have been a repair that would have been necessary.” In this we think there was error. If the sub-cellar was included in the lease, it was the duty of the defendant to have put and kept it in good repair. If it was in such a condition that it rendered the whole tenement unfit and unsafe for occupation, there is no question but it needed repairing, and the jury should have been told so. A cellar partly filled with water, month after month, because the drain has become stopped up, is out of repair. As by the terms of the lease the defendant was under obligation to put and keep the premises in repair, if the sub-cellar was included in the lease, the defendant was estopped from complaining of the stoppage of the drain. It was his duty to have unstopped it, and so to have removed the cause which he claims rendered the rooms unfit for occupation. Under the charge, the jury may possibly have found, tha\ the sub-cellar was included in the lease, but that the unstopping of the drain was not a repair that the defendant was obligated by the lease to make; so that notwithstanding he was in the control and occupancy of the sub-cellar, and bound to keep the premises in repair, yet he had good cause for abandoning the premises. From the case as developed in the exceptions, we can hardly believe that the jury turned the decision upon this ground ; but as they may have done so, and as we think there was error in the charge in this one particular, the judgment is reversed, and cause remanded.