Bailey v. Wells

By the Court, Cole, J. Probably the various grounds of defence interposed by the plaintiff in error, in the court below, really resolve themselves into the positions stated in the brief of the counsel for the defendant in error, and we therefore think that we shall sufficiently dispose of all the questions in the case necessary to be noticed, in considering those propositions. The positions are stated as follows: 1. That the assent, express or implied, of the lessor, to the assignment of the lease sued on, amounts in law to a release of the lessee from his obligation to pay rent. 2. That the lessor ought not to recover because the lessee proposed to prove an oral surrender of the leased premises to the lessor. [157] 3. That the lessor ought not to recover because he did not prove that he gave possession of the premises to the lessee. The action was brought to recover rent due upon a written lease, made and executed by Wells on the 4th day of March, 1850, by which he demised certain premises in Milwaukee to Bailey, for the term of five years and nine months. Bailey promised and agreed in the lease to pay the rent, according to the terms therein mentioned, and also not to underlet the premises, or assign the lease, without the written consent of the lessor. Shortly after the execution of the lease, Bailey assigned to the trustees of a religious society, who again assigned to one Day. Wells gave his consent, indorsed upon the lease, to the assignment by Bailey, to the trustees, South-well and others, and the testimony showed that he had received rent at different times from the assignees. It is now insisted, among other things, that the assent of Wells to the assignment of the lease to the trustees, South-well and others, and the acceptance and receipt of rent from the assignees, in legal contemplation, was equivalent to his constituting them his real and only tenants, and exonerated Bailey from all liability, further to pay rent This position we consider untenable. The authorities are clear that where the lease contains a covenant to pay the rent, the lessee continues liable therefor, notwithstanding the fact that the lease may have been assigned, and the lessor may have accepted rent of the assignee. This doctrine is founded upon the principle that the lessee having contracted or agreed to pay the rent, he is not released from his obligation, though the lease happens to have been assigned. Fletcher vs. McFarlin, 12 Mass. R., 43; Post vs. Jackson, 17, J. R., 238; Walton vs. Crowly, 14 Wendall, R. 64, and cases there cited. In the present case, Bailey, for a good and valuable consideration, entered into an agreement to pay the rent which might become due upon the lease, and [158] he is bound by this agreement, though the lease may have been assigned and the lessor may have assented to the assignment, and received rent from the assignee. It was undoubtedly competent for the lessor to relieve him from this obligation, but it does not appear that he has done so. The law, therefore, cannot relieve him from the nature and extent of the contract which he has made. Further let us inquire whether there is any ground for saying that there had been a legal surrender of the lease. A surrender is said to be a yielding up of an estate for life, or years, to him who has the immediate estate in reversion, or remainder, wherein the estate for life, or years, may drown by mutual agreement. Woodfall, L. & T. 205; Taylor, L. & T. § 507; Schieffelin vs. Carpenter, et al., 15 Wend., 400. This was a lease for years, and it was proposed to show, by parol testimony, that there had, in fact, been an express surrender of the estate to the lessor. This evidence was incompetent, and was directly in violation of the statute of frauds. Section 6, Chap. 75, R.. S., declares that “ no estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing.” When a new lease of the premises is taken from the lessor, for the whole or a part of the term embraced in the former one, there is said to be a surrender in law, because the giving a new lease necessarily implies a surrender of the old one. Now there are no circumstances in this case which will authorize the presumption that there has been a surrender by operation of law. And if there has been any surrender in fact, it could only be done by some note or memoran [159] dum in writing, subscribed by the party surrendering the «ame. It is not pretended that any such surrender was made, or that any such writing exists. The circuit court, therefore, very properly refused to permit the plaintiff in error to show an oral surrender of the leased premises to the lessor. Upon the last point in the case we only deem it necessary to observe that it satisfactorily appears from the evidence, that the trustees of the religious society were in possession of the demised premises at the time the lease was executed to Bailey, and that he was fully aware of this fact, having been connected with the church, and having previously been one of the trustees. After he obtained the lease, he endeavored to get possession of the premises, notified the trustees to quit, and continued his efforts until he was threatened with a suit in chancery by them. Then it seems he abandoned all idea of evicting the trustees, and assigned his lease to them. There is, therefore, no reason for saying that the plaintiff in error, or which amounted to the same thing, his assigns, were not let into possession of the demised premises. The result at which we have arrived is, that the judgment of the circuit court must be affirmed.