Abeel v. Hubbell

• Decision Date: 31 October 1883
• Citation: 52 Mich. 37,17 N.W. 231
• Court: Michigan Supreme Court
• Parties: ABEEL v. HUBBELL and others.

17 N.W. 231

52 Mich. 37

ABEEL v. HUBBELL and others.

Supreme Court of Michigan

October 31, 1883

Where in a lease, the landlord reserves a right of sale, and this sale is to terminate the lease, on the payment of certain damages, some specific and some to be ascertained by arbitration, an action to remove the tenants will not lie before the damages are ascertained and tendered, the tenants not being shown to have defaulted in any way.

The land being sold in parts to separate grantees, neither of them can stand as assignees to the landlord's title, and they have no joint interest; consequently they have no basis for their action.

Error to St. Clair.

Atkinson & Stevenson, for plaintiff and appellant.

Wm. T Mitchell, for defendants.

CAMPBELL J.

Abeel brought summary proceedings to remove defendants from land leased to them by his father, James Abeel. The claim of complainant was that they held over wrongfully after the lease was determined. He prevailed before the magistrate, but the circuit court of St. Clair county, on appeal, held he made out no case. The lease was by its terms to run from April, 1879, to April, 1882. The rent for the whole term was $810, not payable at any fixed rate per year, but in fixed installments, not all equal. The whole farm contained 142 acres, and some restrictions were made as to the parts of the land on which certain acts were to be done. The lease contained a clause providing that the lessor was to have the right of selling the farm, but in case he did so he was to pay the lessees $1.50 per acre for plowing, and a reasonable sum for such damages as they should sustain "to be left to two men, one chosen by each party. If they cannot agree, then they are to choose a third man." This, as here set forth, is all that the lease contained on the subject. On the twelfth of January, 1880, the lessor conveyed one parcel of the farm to complainant, and the remainder to another son, William Abeel. Immediately after these conveyances the lessor gave notice to the lessees that he had sold and conveyed the land to the persons named, and that he had chosen Lewis A. Frost as arbitrator, and requiring them to choose an arbitrator within 14 days, and set the time for removing from the farm. No other notice to quit was given, and this was given after the conveyances. This proceeding was begun March 11, 1880.

Some testimony was given tending to show that each party named an arbitrator, and that the arbitrators met on the twenty-fifth...