Vrooman v. McKaig

Le Grand, C. J., delivered the opinion of this court. This is an action of indebitatus assumpsit. The appellant, who was the plaintiff in the court below, proved that an action of ejectment was pending in Allegany county court, between Elizabeth Vrooman, as plaintiff, and John Z. Vrooman, as defendant, to recover a house and lot in the town of Cumberland; that prior to the October term 1848 of said court John Z. Vrooman died, leaving his widow, the appellant, in possession of the premises, which she leased to Joseph Pelton, who occupied them and paid rent as such until 2nd April 1849. She also offered in evidence an agreement entered into 2nd April 1849, between the appellee, as attorney of Elizabeth Vrooman, Henry Fleury, and the appellant, by which it was agreed and understood, by and between the parties, that the appellant was to allow of the substitution of [453] Fleury, at an increased rent, for Pelton, as tenant of the premises, for one year; the rent, ($100,) to be paid to the appellee, and by him to be paid — to use the language of the agreement — “to the successful party in an ejectment suit now (then) pending in Allegany county court, for the said house and lot, between Elizabeth Vrooman, as lessee of the plaintiff, against John Z. Vrooman, deceased,” &c. The appellant also gave in evidence the proceedings in the ejectment suit, by which it was shown, that by the leave of the court she appeared to the action, and that subsequently, by direction of the attorney of Elizabeth Vrooman, a judgment of nonpros, was rendered by the court. The occupancy of the premises by Fleury, and the payment of rent to appellee until the 1st day of April 1851, were also proved. To rebut this evidence the appellee offered to prove the property wms that of Elizabeth Vrooman, and that John Z. Vrooman, her son, took possession of it as such, and being so possessed at the time of his death, his widow, the appellant, continued to hold and exercise control over it. To the admissibility of this testimony the appellant objected, but the court overruled the objection. It is the admission of this testimony which constitutes the first exception. We are of opinion the court erred in allowing this testimony to go to the jury, and also in granting both of the prayers of the appellee. The agreement ascertained, by its own terms, to whom the rent was to be paid, by fixing the mode by which the title to the property was to be established. There was consideration for this agreement. The appellant, by her tenant, was in possession of the premises, she could not be removed except by legal proceedings. Besides, by the terms of the agreement, the rent to be received for the property by the person entitled to it was to be increased. This circumstance, independently of all others, furnishes a sufficient consideration to support the contract. The agreement admits that Fleury was to take possession as the tenant of the appellant, and it was not competent for him to dispute her title, nor, under its [454] terms, could the appellee or Elizabeth Vrooman do so, other* wise than in the manner pointed out. So far from the ejectment suit establishing the right of Elizabeth Vrooman to the rent, it established the reverse. The appellee is merely a stake-holder, and it is no more competent to him than it was to the tenant Fleury to question the right of the appellant to the rent, otherwise than as agreed upon between all the parties. The appellee insists that the appellant can recover, if at all, only the rent for the first year, on the ground that as plaintiff is relying on the agreement, she must be bound by its terms. This is an action for money had and received, in which the plaintiff can recover any money in the hands of defendant which, ex cequo et bono, belongs to the plaintiff. The suit is not brought on the agreement. It is relied upon as evidence to show how the money came into the possession of the appellee, who, having received it from the tenant of the appellant, must be adjudged liable for the whole amount. There is no question in regard to the receipt of the rent by the appellee; and it is a well understood principle of law, that where a tenant from year to year holds over, without any new stipulations between the parties, he impliedly holds subject to all the covenants in his lease; and in the absence of any new stipulation the law implies those terms, which are found in the contract which has expired. Be Young vs. Buchanan, 10 Gill and Johns., 149. Judgment reversed and procedendo awarded.