Mayor of Brookhaven v. Baggett

Chalmers, J., delivered the opinion of the court. In October, 1867, the town of Brookhaven entered into a contract with B. W. Millsaps by which it was agreed that Millsaps should erect a market-house for the town, and for his compensation should have the occupancy thereof for twelve years under the existing regulations and ordinances with reference to the manner of its control and use. It was contemplated by both parties that the building would be erected on the right of way of the N. O. & Jackson B. B., which ran through the centre of the town, and accordingly the municipal authorities sought and obtained the consent of the railroad authorities to its location on their right of way. This consent was evidenced by a letter written by the general superintendent of the railroad company, stating that he had “no objections” to its being so built. Under this contract Millsaps built the house and entered [389] upon the business of keeping the market, letting out the stalls therein to hucksters and others for yearly or monthly rents. In a short time he sold out and transferred all his rights to Mrs. Baggett, whose husband had been the mayor of the town, who had obtained from the superintendent of the railroad the privilege of building upon the right of way of the railroad company. Mrs. Baggett continued without interruption in the exercise of the rights acquired by the transfer until 1872, when the mayor and aldermen made a change in the market ordinances which she thought detrimental to her interests, for which she brought suit against the town for damages alleged to have been sustained by reason of such change in the ordinances. This suit was compromised by an agreement upon her part to surrender to the town the use of a portion of the building for the occupation as an office by the mayor, and an agreement upon the part of the town authorities, that her rights under the original contract should be extended for six years longer, that is to say, until 1st of January, 1888. This contract was in writing, signed and sealed by Baggett and wife, and by the mayor and aldermen. In the written contract of compromise the original contract between Millsaps and the town is spoken of as a “ lease ” by the former from the latter, and the stipulation is that this “ lease should be extended to January, 1888.” In 1882 the N. O. & Jackson B. B. Co., or rather their successors, the C., St. L. & N. O. B. B. Co. brought an action of ejectment against the town and against Mrs. Baggett, and evicted them from the premises upon the. ground that they were mere licensees at will of the railroad company, with right only to. hold during the pleasure of the latter. Mrs. Baggett has now brought the present action against the town to recover damages for the breach of an implied warranty for quiet enjoyment contained in the alleged lease of the premises to her by the town, and has obtained a judgment for one thousand dollars damages for such breach of warranty. This judgment cannot be sustained for several reasons. In the first place, there was no lease between the parties, and calling the [390] original contract entered into with Millsaps a “ lease,” as was done in the written compromise with Mrs. Baggett, did not make it such. The town owned no property to lease, and did not assume to lease any. It simply agreed that if Millsaps would build a house to be used as a market-house for the town, he should have the privilege of so using it for twelve years, at the end of which time it would become, so far as he was concerned, the property of the town. All that the town granted or that he received was the exclusive right or privilege of keeping this house as a town market, under ordinances which required all hucksters and vendors of marketable commodities to rent stalls from him at fixed prices. If the town had erected a market-house elsewhere or authorized another to do so, it would have probably subjected itself to an action for damages, but in no sense was it a lessor or he a lessee. But even if there had been a formal lease, there could under the circumstances of this case have been no recovery as for breach of an implied warranty for quiet enjoyment, occurring after the termination of the lessor’s term, there being no express warranty whatever. The law never implies a warranty in a lease except so long as the lessor has a term. It is upon this principle that a life tenant is only held upon an implied covenant so long as his own tenancy lasts; when that is gone, his implied covenant is gone. By implication, the fact that he has made a lease binds him so long as his own estate lasts, and no longer. In this case botii parties contracted with full knowledge and notice of the town’s being a mere licensee of the railroad. Bawle on Covenants for Titles, 468 et seq. and notes. Judgment reversed. Action dismissed.