Pelton v. Place

Rowell, J. In the lease of July 2, 1885, which is the foundation of the suit, the orator and the defendant Skeels are lessors, and The Highgate Driving Club is named as lessee, and as acting in the transaction by the defendants and Tuller, its directors. But the instrument is not the deed of the Club, for it is not executed in its name nor sealed with its seal, but is signed and sealed by the defendants and Tuller in their individual capacity only. The master has found on parol testimony objected to, that they in fact signed as directors and not otherwise, and were thereunto authorized, and that the orator so understood it at the — 435 — time. But it is not necessary to decide whether the parol testimony was admissible or not; for if it was, as it appears that the defendants were themselves members of the Club, and does not appear that the Club was anything more than a voluntary association without corporate existence, in acting for the Club they acted for themselves as well as for the other members, and therefore bound themselves. The case then, at most, is one of nonjoinder of defendants, if indeed it is even that, as the bill is based upon the lease, which is under seal, and does not name any other persons who should be defendants. The defendants demurred in their answer for misjoinder of defendants, as we construe the pleading, and we suppose the demurrer was seasonably brought on and overruled, though the record furnished us does not show it. If so, it was properly overruled, for as a want of defendants does not appear on the face of the bill, the objection could not be taken by demurrer. But if the answer means that the objection was taken to be availed of at the hearing, the decretal order does not show that it was then availed of; and as the members of the Club are numerous, as shown by the answer, and the defendants fairly represent the interests of all, and a full and complete decree can be made between the parties before the court without prejudice to the rights of the other members, — the objection is not noticed. Dewey v. The St. Albans Trust Co., 60 Vt. 1. The defendant Skeels being both lessor and lessee in said lease, which is joint and not several, the suit is properly brought in chancery, for an action at law could not be maintained thereon, as Skeels would be on both sides of the record. By the deed of March 31, 1890, whereby the orator conveyed to Marsh all his interest in that part of the demised premises called the Green lot, his interest in the lease as to that part, and a proportionate share of the rent, passed as an incident of the reversion, according to the' — 436 — maxim, that the incident shall pass by the grant of the principal. The defendants and other members of the Club learned of this conveyance from the land records soon after it was made; but Marsh said nothing to them about it till the spring of 1894, when he leased to them for that year. This was an attornment; and as it involved notice, it was good from the time the rent then in arrear began to accrue, which was subsequent to the conveyance. At the-common law, by some modes of conveyance, the assignment of a reversion expectant on a term for years or for life, was incomplete without the attornment of the tenant. If he refused to attorn, he was not liable to the assignee for rent. But this principle was inconvenient, and a great clog upon transfers, as tenants would sometimes unreasonably refuse to attorn. To remedy this, the 4 Anne, c. 16, made assignments of reversions valid in all cases without attornment, but provided, for the protection of the tenant, that all payments of rent to the lessor before notice of the assignment should be good. The doctrine of attornment was a product of feudalism, and sprang from the peculiar nature of the feudal bond. Attornment is not necessary under our system of conveyances, to complete the validity of an assignment of a reversion; and therefore, not being applicable to our situation and circumstances, that doctrine was not adopted by our statute as a part of the common law. And although the statute of Anne may not be in force in this state, yet, as the title of the assignee is complete without attornment, we hold on the ground of universal equity, as they do in Massachusetts, that he is entitled to all arrears of rent that accrue after the conveyance and are not paid to the grantor in default of notice, and no more; for if he lies by and suffers the tenant without notice to pay rent to the lessor as it falls due, he has no reason to complain. Indeed this seems to have been the common law when the grant passed the estate without attornment, as it — 437 — did in the case of a fine or a deed of uses on which the statute of 27 Henry VIII. operated. In Birch v. Wright, 1 Term 385, Mr. Justice Buller cites Watts v. Ognell, Cro. Jac. 192, as strong proof of how much equity and good sense have always prevailed in the law. That was debt for rent by the assignee of a reversion under a fine levied to his use. It was objected in arrest of judgment that the declaration was not good, because it was not alleged that the lessee had attorned, nor that he had notice of the use limited; and that even if the assignee might avow without attornment, yet notice ought to be given the lessee, for otherwise he would be at mischief, for the use might be limited and he, not knowing it, might pay rent to his ancient lessor; and that therefore it was not reason that he should be charged without notice, which ought to be shown by the declaration. The court doubted on this point at first, but finally decided that the action was well brought, and that notice need not be alleged. But it agreed that the lessee was not bound to pay without notice, and if he had paid without notice, that it was a good excuse for him, and might be plead; and if he had not paid, that the action gave him notice to pay to the assignee, and then he was chargeable for all that was not paid. Mr. Justice Buller says that this case, though decided almost a hundred years before the passage of the statute of Anne, established the same rule that the act professed to make. The orator cannot, therefore, recover any rent in arrear that accrued on that part of the demised premises deeded to Marsh, as it all accrued after the conveyance. It is unnecessary to inquire as to the efficacy of the actual notice from the land records, as no question is here involved as to rent already paid to the orator. But as to the rest of the demised premises, which is a part of the farm mortgaged to the insurance company, the case stands on different ground. As the rent in question that accrued thereon, accrued after the company’s decree of — 438 — foreclosure became absolute, it is unnecessary to consider the rule between mortgagor and mortgagee in respect of rent that accrues on a lease given by the mortgagor subsequent to the mortgage and without the mortgagee’s consent. That rule is very different from the one we have been considering. The defendants were not affected by that decree, as they were not parties to the foreclosure; and although the orator’s title as mortgagor was thereby taken away, yet he at the same time acquired an interest in the farm by lease from the company, and that interest was continued by annual leases until April 1, 1894, when it ceased in the part covered by the defendants’ lease, and the company let it to one of the defendants. The defendants continued to occupy and pay rent until July 2, 1892, when they abandoned the premises on account of the character of the orator’s title, and refused longer to pay rent, and Skeels “took back” his portion of the land; and although he occasionally drove horses on the track that year and the next, it cannot be said, on the facts found, that he did it under the lease. As the orator’s new interest was sufficient while it lasted to feed the lease, the defendants could not during its continuance abandon the premises as they did, and their obligation to pay rent continued notwithstanding such abandonment. They could not by anticipation and because they feared, treat the lease as broken by the orator because his interest was not in the first instance sufficient in point of time to feed the lease during the remainder of the term, for he had not renounced the lease, nor was it out of his power to perform, for he was performing, and might continue to perform, for aught the defendants knew. They were bound, therefore, to wait till the breach came, when they could seek such remedy as the lease afforded them; and if it afforded them none, if; was their fault that they did not stipulate for one. The master was unable to find that the orator ever expressly agreed to take back his part of the land, or — 439 — otherwise released the defendants from the payment of rent; but he finds that on July 4, 1893, he let the premises, and on his own account, it would seem, to other parties for a celebration, and was paid therefor the sum of four dollars, This he had no right to do if he would still hold the defendants for rent, as it interfered with their right of dominion and control, and therefore it was a resumption of possession by him, and an acceptance of the defendants’ abandonment, which worked a surrender of the term by operation of law. Welcome v. Hess, 90 Cal. 507: 25 Am. St. Rep. 145. What Skeels did by way of “taking back” his part of the land did not amount to an eviction as matter of law, for the requisite intent does not appear. The orator, therefore, is entitled to rent for the year ending July 2, 1893, with interest thereon, for that part of the demised premises that is on the home farm. The finding that rent was paid to July 2, 1892, instead of only to March 2, 1892, is well warranted in law. Reversed and remanded, with mandate.