Edwards v. Perkins

By the Court, Boise, J.: It is claimed, in this case, by the respondent, that this cause should be dismissed for this reason, that there is no udgment in the circuit court from which an appeal will lie. It appears from the amended transcript that on the twenty-eighth day of May, 1878, the judgment appealed from was rendered against the appellant for twenty-four dollars and eighty-five cents, costs and disbursements, and that after-wards, on the same day, the appellant paid the same, and on the twenty-third day of July, 1878, appellant caused a notice of appeal to be served on the respondent. The question is, can a party to a judgment against himself appeal after he has voluntarily paid the judgment? When an appeal is taken, an undertaking must be given by appellant and filed with one or more sureties, to the effect that the appellant will pay all damages, costs and disbursements which may be awarded against him on the appeal; but such undertaking does not stay the proceedings unless the undertaking further provides to the following effect: “If the judgment or decree appealed from be for the recovery of money or personal property, or the value thereof, that if the same or any part thereof be affirmed, the appellant will satisfy it so far as affirmed.” So in this case, if the appellant had not paid the judgment, the respondent [155] could have had an execution issued on the judgment and compelled him to pay it notwithstanding the appeal. We think he is in no worse position from having paid the judgment voluntarily than if he had settled the execution with costs. There is nothing in this point. We will now consider the point made in the argument that the lease named in the complaint being in writing and under seal, conveyed an interest in the land such as is described in title 1, of chapter YI, of the code, and that the lease is a conveyance of an interest in the land to which there could be no implied covenants, as provided in section 6 of said title. (Stat. 516.) At common law a lease of land for a term of years was a chattel interest and did not descend to the heir, but went to the administrator, and such is the case still unless this rule has been changed by our statute. The statute provides for the conveyance of land by deed, and we think embraces only such conveyances as purport to convey a freehold estate such as may descend to heirs, or is for the life of the grantee, and does not include leases which are classed by the statute as personal property. (Stat. p. 550, sec. 14.) In this section of the statute the terms real estate and personal property are clearly defined in these words: “The term real property includes all lands, tenements, and hereditaments and .rights thereto, and all interests therein, whether in fee-simple or for the life of another. The term personal property includes all goods, chattels, moneys, credits and effects of whatever nature not included in the term real property. ” It will be seen by these definitions that the word real property is more comprehensive than the word land, and the definition here given of real property is certainly more comprehensive than the word land as used in title 1, of chapter YI, of the code, on which respondents rely, and yet it excludes leases. We think it is very evident from these statutes regulating the conveyance and descent of real property, that leases are not embraced in the words “conveyance of land,” as used in title 1, of chapter YI, and that the provision in section 6, [156] of said title, that “no covenant shall be implied in any conveyance of real estate,” does not apply to leases. As to leases, we think there is an implied covenant that the lessor will protect the lessee in the quiet enjoyment of . the premises for the term of the lease. (Bawle on Covenants, 215, 476, 477.) If the tenant is evicted by a person having a paramount title, he can have an action against his landlord for damages. There is one other question presented in this case, and that is, that the contract of leasing is entire, and that the lessee, when he took the lease and entered on the land, purchased of the lessor some grain that was sown on the premises. The lease of the premises, with the right of immediate possession and entire enjoyment of the issues and profits, would carry with it the emblements, unless the same were reserved in the lease. So the words in this lease, “and the said Edwards is to have and own all crops that are now put in or growing on said premises,” add nothing to the rights of Edwards under the lease. We think the complaint does state facts sufficient to constitute a cause of action, and that the circuit court erred in sustaining the defendant’s demurrer. The judgment of the circuit court will be reversed, with costs, and a new trial ordered.