Brush v. Beecher

Grant, J. (after stating .the facts). The material parts of the leases being the same, we will discuss the first lease only. The position of the plaintiff is that this is a lease for a term of years, with covenants for perpetual renewals, and is equivalent to a demise in fee, and therefore valid. The position of the defendants is: 1. That the lease has ceased and is terminated by the nonpayment of rents. 2. That, if it is not so determined, it is void for want of mutuality. 3. That, if it be construed as a lease for perpetual renewals, it is void as against public policy. 4. That it was not intended by the original parties to it to be a lease in perpetuity. There are authorities which hold that such leases are against public policy. In Morrison v. Rossignol, 5 Cal. [602] 64, the court held that: “A covenant for a lease to be renewed indefinitely at the option of the lessee is, in effect, the creation of a perpetuity. It puts it in the power of one party to renew forever, and is therefore against the policy of the law.” In principle, there is no difference between an endless succession of five-year estates, and an endless succession of life estates, which the law prohibits. This lease is not a grant in fee, reserving rent, as the Van Rensselaer leases in the State of New York have been held to be. Van Rensselaer v. Hays, 19 N. Y. 68 (75 Am. Dec. 278); Van Rensselaer v. Ball, 19 N. Y. 100. In the present case the lease, aside from the clause for renewal at option of lessor, is the usual one for a term of years. The landlord, exercising his option to terminate, limited his liability to pay for buildings and improvements to $10,000. The land is situated near the center of the business pait of a great and growing city. The lessor cannot improve it, and there is no inducement for the lessee to do so. If the lessee should build expensive buildings, it would furnish an inducement for the lessor to terminate the lease; and, if the improvements do not amount to that sum, yet another person may be willing to pay more rent, and make an agreement with the lessor to terminate the lease and oust the tenant. It must be conceded that such an arrangement prevents the free use, sale, and circulation of property which is in accord with the spirit of this country. It is clear that this is not an absolute lease for such length of time as, under the New York decisions, amounts to a transfer of the fee, and in no sense restricts or interferes with that use and sale of the land, and the interest of the lessor and lessee, in which the public are rightfully interested. It is, however, unnecessary to discuss this question further, or to determine the validity of a lease which in unequivocal language provides for perpetual renewals. We are of the opinion that this lease does not so provide. In one point the authorities are harmonious, viz., that the law does not [603] favor perpetua, leases of the character claimed for this one, and the intention to create one must appear in clear and unequivocal language. It cannot be left to inference. Courts will, if possible, so construe the writing as to avoid a perpetuity by renewal. Muhlenbrinck v. Pooler, 40 Hun, 526; Bruce v. Bank, 79 N. Y. 154 (35 Am. Rep. 505); Rutgers v. Hunter, 6 Johns. Ch. 215; Piggot v. Mason, 1 Paige, 412; Carr v. Ellison, 20 Wend. 178; Syms v. Mayor, etc., of New York, 105 N. Y. 153, 50 N. Y. Super. Ct. 289. We think it clearly appears “from the four corners of the instrument ” that the parties did not intend to provide for perpetual renewals. The writing bound only Mr. Brush, his administrators, executors, and assigns, and Mr. Beecher, his administrators, executors, and assigns. It bound the heirs of neither party. See Rawle, Cov. §§ 309, 310. The learned counsel for the plaintiff appears to recognize this, and admits that the heirs of Mr. Beecher are not personally bound, but that under 2 How. Stat. §§ 5937, 5940, the heirs of Mr. Beecher are liable only so long as they have assets in their hands which came from his estate. These sections, and other provisions of chapter 224, 2 How. Stat., refer to contingent claims, and such claims must first be proven against the estate. This necessarily involves keeping the estate open indefinitely,— a condition for which the statute does not provide. It is held in Quain’s Appeal, 22 Pa. St. 510, that a ground-rent covenant does not survive against the administrators, except as to the rents which accrued in the lifetime of the deceased. It is reasonable to hold that the word “ heirs” was left out of this lease for the reason that neither party desired to make it binding upon his heirs. It would be absurd to hold that either party understood that he was executing an instrument which would require his estate to be kept indefinitely in the hands of executors. The duty of administrators is to settle estates, and divide them among the heirs. They cannot carry on the business in which the deceased was engaged,' except at their [604] peril; and, even where a will provides that executors may continue the business of their testator, they cannot be compelled to do so. Williams, Ex’rs, 1762, 1791. The rent is reserved to the lessor, his administrators, executors, and assigns, and not to his heirs. It is also of some significance that the lease contains no provision for re-entry by the lessor in case of nonpayment of rent, which is usually found in leases, but only in case he shall elect to take the buildings and terminate the lease. The language is that upon failure to pay the rent the lease shall immediately cease and terminate, and be utterly void, anything to the contrary therein contained notwithstanding. In case of failure to pay rent, the lessee would lose his buildings, for they were a part of the realty. Kutter v. Smith, 2 Wall. 491. If Mr. Beecher had refused to appoint arbitrators to readjust the rent, or if the arbitrators had failed to agree, the lease contains no provision by which the old lease shall stand, or the former rate of rent continue. Mr. Beecher might lose his improvements in the event of his refusal to appoint arbitrators, and Mr.- Brush’s remedy at law for damages would be ample. Under the authorities above cited, Mr. Brush could not maintain a suit in equity to enforce the specific performance of his contract. We do not think that this contract should be construed to provide for perpetual renewals, or to extend beyond the lives of the parties to it. It was terminated by their death. It follows that the judgment must be affirmed. Montgomery, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.