Meyers v. Russell

BIAND, P. J. (after stating the facts). — 1. The instruction (No. 3.) for defendant should have been given, if by the reservation in his deed to the Bents, defendant retainel no interest in, or control of any part of the premises, or the rents and profits thereof. Defendant’s evidence tends to show that he bought the property at a trustee’s sale for the benefit of the widow and heirs of James Bent, and for the purpose of paying off the deed of trust, under which the property was sold, and to pay other small debts of the estate of James Bent. Defendant executed the deed of trust on the property to secure a loan of $7,500 and appointed Niesen his agent to manage the property, with authority to execute leases thereof and collect the rents, and then conveyed the property to the Bents, subject to the deed of trust and also subject to the appointment of Niesen as agent for the property. By assuming the payment of the deed of trust, the Bents became liable as principals for the payment of the $7,500 loan, and defendant, in relation thereto, stood as surety. The deed of trust was not paid at the date the premises were let to plaintiff. The agreement between defendant and Niesen recites that Niesen had negotiated the loan of $7,500 for defendant and it was “to the mutual interest of the owner (of the premises) as well as the holder of the said mortgage, that said property be kept in constant repair, in order to realize the — 325 — greatest possible amount of income from tbe same.” Niesen was appointed agent for the management of tbe property until tbe debt secured by tbe.mortgage should be paid. Tbe agreement was made for tbe benefit of the mortgagor as well as tbe owner, and tbe conveyance to tbe Bents was subject to this agreement, and while it does not, in terms, provide that tbe rents, after payments for repairs should be set aside or applied to tbe payment of tbe mortgage, such was tbe evident purpose of tbe parties. Another purpose bad in view was to keep tbe property in constant repair so that it would not deteriorate and thereby depreciate tbe value of tbe security for tbe loan, which was for about tbe full value of tbe property. Tbe rents and control of tbe property, by tbe reservation in tbe deed to tbe Bents, were reserved during tbe life of tbe mortgage for the benefit of Russell, as surety for tbe loan, and for tbe benefit of tbe bolder of the mortgage. A reservation in a deed is defined to be “A creation in behalf of the grantor of a new right or interest' in tbe property granted.” [6 Am.- & Eng. Ency. of Law, p. 515.] “A reservation is something taken back out of that which is granted, — as, for instance, rent, or some right to be exercised, as tbe cutting of timber.” [Youngerman v. Board of Supervisors, 110 Ia. 1. c. 736; Cutler v. Tufts, 3 Pick, 1. c. 274; Randall v. Randall, 59 Me. 1. c. 340; Gould v. Howe, 131 Ill. 1. c. 497.] According to these authorities, defendant, by tbe reservation in bis deed to tbe Bents, retained an interest in tbe premises, and be, not tbe Bents, sustained tbe relation of landlord to plaintiff and was tbe proper party defendant in tbe suit. 2. It is not alleged in tbe petition, that tbe lessor warranted tbe premises to be in good repair. Tbe evidence of plaintiff, however, is that tbe premises were represented by defendant’s agent to be in a good state of repair and would be kept in that condition. Taylor says, “As tbe l.essor does not warrant tbe condition of tbe — 326 — premises, and the tenant, because he can inspect them assumes the risk of their condition; for any injury suffered by him during his occupancy on account of their defective condition, or even faulty construction, the tenant cannot make the lessor answerable, unless there was misrepresentation, active concealment, or, perhaps, total inability on the tenant’s part to discover the defect before entry.” [1 Taylor, Landlord and Tenant (9 Ed.), sec. 175a.] At section 175b the author says: “The common law doctrine of caveat emptor” applies to the right of the lessee in the leasing of property, “in the absence of any covenant or statutory provision abrogating it.” In Peterson v. Smart, 70 Mo. 1. c. 37, the following-quotation from Jaffe v. Harteau, 56 N. Y. 398, is approved, to-wit: “A lessor of buildings, in the absence of fraud or any agreement to that effect, is not liable to lessee or others lawfully upon the premises, for their condition, or that they are tenantable and may be safely and conveniently used for the purposes for which they are apparently intended.” In Gately v. Campbell, 124 Calif. 520, it was held: “In the absence of any covenant by the landlord for repairs in the lease of rented premises, or of any fraudulent representation or concealment on his part, or knowledge by him that the premises when rented were unfit for occupancy, he is not liable for injury to the tenant caused by the breaking away of the defective floor of a porch.” In Doyle v. Railway, 147 U. S. 413, it was held: “In the absence of fraud, misrepresentation or deceit, a landlord is not responsible for injuries happening to his tenant by reason of a snowslide or avalanche.” In Minor v. Sharon, 112 Mass. 477, it is said: “The owner of a dwelling-house, who, knowing that it is so infected with the smallpox as to endanger the health of the occupants, leases it, for the purposes of habitation, without disclosing the fact, to one who is ignorant of its — 327 — condition and who, without contributory negligence on his part, by reason of the state of the house, is attacked by the disease, is liable to an action.” In Martin v. Richards, 155 Mass. 381, Minor v. Sharon was followed and applied, where the facts disclosed the lessor had failed to disclose the fact that there was a disused privy vault on the premises, the odors from which caused sickness and death in the family of the lessee. In Maywood v. Logan, 78 Mich. 135, it was held: “The concealment by a landlord from a tenant of the polluted condition of the water in a well belonging to the leased premises, after his discovery of the cause, which he failed to remove, and which existed at the time of the leasing, will subject him to damages for all of the injuries naturally following from the use of the water, and the tenant, on discovering the facts, is justified in vacating the premises and terminating the tenancy, if the cause of such pollution cannot be removed; its presence amounting to an eviction, relieving the tenant from the payment of rent after such removal.” In Hines v. Willcox, 96 Tenn. 148, it was held: “A landlord is liable to his tenant for damages that may result from the unsafe and dangerous condition of the premises leased when that was known to, or with reasonable care and diligence might have been known to, the landlord, but not to the tenant, although the latter examined the premises and did not discover the defect.” This case is reported with an extended note in 34 L. R. A. 824. At the conclusion of the note the annotator says: x“Tt is not his (the landlord’s) dnty to search for defects, and if the defect is easily discoverable he need not mention it.”, Hines v. Willcox was especially called to the attention of the Supreme Court in Whitely v. McLaughlin, 183 Mo. 160, 81 S. W. 1094, but the court refrained from deciding whether or not it was the duty of the landlord to use reasonable care to learn of the condition of — 328 — his premises before renting them, as it would not, under the evidence, help the case that was before the court. In the light of these authorities, we do not think the common law doctrine of caveat emptor applies in all circumstances to the rights of the lessee in the leased premises. On the contrary, they hold that where there is anything (not easily discoverable) on or about the-, premises, rendering them dangerous for the purposes for which they áre being let, and the landlord has knowledge of such danger, it is his duty to notify the lessee of it. It would be an extremely harsh and unjust rule to permit a landlord to lease premises with knowledge of a hazard thereon, to which the tenant would be exposed, to keep silent and yet escape liability, if the tenant, while in the exercise of due care, is injured in consequence of the exposure. While there is no direct evidence that either Niesen or defendant had knowledge of the unsafe condition of the stairway, yet from the long time it had been, in that condition, and from the duty of Niesen, under his appointment as agent, to keep the premises in constant repair, the fair inference is that he >did know of their condition, and his knowledge is imputable to defendant, whose agent he was. Besides, plaintiff maintained that Miss Carroll, acting for Niesen, represented to her the premises were in good repair at the time she rented them. If this representation was made, it was false, and there being no evidence whatever that plaintiff was at fault in failing to detect the unsafe condition of the stairway before, or at the time, she went upon it and was hurt, we think she made out a prima facie case, and that the refusal of the defendant’s third instruction, for the reasons herein stated, was not error. Hence we rule that the trial court erred in sustaining the motion for new trial on the ground stated in its order! A considerable portion of defendant’s brief is devoted to the discussion of the sufficiency of the petition. There are some unnecessary averments in the — 329 — petition, but it alleges facts sufficient to constitute a cause of action under the law, as we understand and have interpreted, it. The judgment is reversed and the cause remanded with directions to the circuit court to set aside its order sustaining the motion for new trial, to overrule the motion and to render judgment on the verdict of the jury. All concur.