AllBENZ v. EXLEY, WATKINS & Co.

• Decision Date: 21 March 1903
• Citation: 52 W.Va. 476
• Court: West Virginia Supreme Court
• Parties: AllBENZ v. EXLEY, WATKINS & Co.

52 W.Va. 476

AllBENZ

v.EXLEY, WATKINS & Co.

Supreme Court of Appeals of West Virginia.

Submitted June 9, 1902.

Decided March 21, 1903.

1. Tenant Rent.

A tenant of land, not merely of a room or appartment, must pay rent for his term though a building on it included in the lease without fault on his part, is totally destroyed by fire, unless the lease otherwise provide. (p. 477).

2. Tenant Annual Lease.

One who enters into possession under a written lease without seal for a term, greater than five years is a tenant at will; but if he pays periodical rent, the tenancy is by law one from year to year, and he must pay rent accordinly. The lease does not vest an estate for the term, but it is admissible evidence to prescribe the rent and the rights of the parties and all things save duration of the tenancy. The tenant can only end the tenancy by notice to quit, and must pay rent as a tenant from year to year, and cannot discharge himself from rent by abandoning the premises. (p. 478).

3. Tenant Liability Loss of Property.

Unless a lease provide for repairs by a landlord, he is not bound to either repair or rebuild in case of accidental destruction. He is bound only so far as his covenant goes. His covenant to repair is independent and does not release from rent, and is to be enforced by recouping damages in an action for rent, or by a separate action for damages. (p. 483).

Writ of error and supersedeas to the Circuit Court, Ohio County.

Action by John Arbenz, Sr., against Exley, Watkins & Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Hubbard & Hubbard, and John Arbenz, Jr., for plaintiff.

Henry M. Russell, for defendant.

Brannon, Judge:

John Arbenz, Sr., made a written lease, but not under seal, to Exley, Watkins & Company, leasing for a term of five years and three months a brick building, including vacant parts of certain lots, in the city of Wheeling, the term commencing 1st January, 1896, and ending 31st March, 1902, for the annual rent of seven hundred dollars, commencing 1st April, 1896, payable in monthly installments. The lessees took possession the first week of January, and "occupied the premises, paying rent monthly. On the 15th September, 1898, a fire totally destroyed said building. The lessees paid rent for that September and also for October, but with the rent for October sent a letter, 31st October, 1898, to Arbenz informing him that they thereby vacated the premises and surrendered them to him. In November, 1898, Arbenz sued out a distress warrant against said lessees for rent from November, 1 1898, to 31st October. 1899, and the same having been levied, a forthcoming bond was given, and in the proceeding upon it in the circuit court of Ohio County a verdict was rendered for the plaintiff for five hundred and two dollars and fifty-four cents after deducting for failure to repair an engine, and judgment given thereon, and the defendants took a writ of error. The defendants filed pleas denying grounds of attachment and denying all liability for the rent claimed.

Counsel for defendants contends that the destruction of the building by fire discharged the tenants from further obligation to pay rent. He does not base this position on common law, as it requires the tenant to pay rent notwithstanding it is wholly destroyed by accidental fire, flood or the like, unless there be stipulation otherwise. 18 Am. & Eng. Ency. L. (2d ed.) 306; 2 Rob. Prae. 52; Scott v. Scott 18 Grat. p. 165; 2 Minor 762.

Where the lease carries no interest in the land, but is a room or apartment merely, total destruction of the thing leased discharges the tenant from future rent. 18 Am. & Eng.. Ency. 308; 2 Tayl. Landlord & Ten., sec. 520. Counsel rests the position that the fire absolved the tenants from rent upon Code, chapter 72, section 22, that "No covenant or promise by a lessee that he will leave the premises in good repair shall have the affect, if the buildings are destroyed by fire or otherwise, without fault or negligence on his part, of binding him to erect such buildings again, or to pay for the same or any part thereof unless there be other words showing it to be the intent of the parties that he should be so bound." This statute was made to change the common law rule that bound the tenant in case of destruction by fire to rebuild, if the lease bound him to leave the premises in good repair. Ross v. Overton, 3 Call 309; Maggort v. Hansburger, 8 Leigh 532; Thompson v. Pendell, 12 Id. 591. It does not change the common law as to rent. The revisors of the Code of 1849 proposed that section so as to release the tenant from rent proportionally when destruction deprived him of the use of the tenement; but the Legislature struck out the clause as to rent. 2 Rob. Pr. 54. Counsel says that the words "or to pay for the same or any part thereof" in the section can refer to nothing but rent. They plainly in terms refer to "buildings," not rent. It does not deal with rent.

The lease in the present case is for a term beyond five years, and being not a deed, it falls under section 1, chapter 71, Code, providing that "No estate of inheritance or freehold, or for a term of more than five years, in lands, shall be conveyed, unless by deed or will." It is argued that the lease is void by the statute, and the basis of no demand for rent. The court gave an instruction, which controls the case, to the effect, for present purpose, that the jury should find for the plaintiff $700 rent for the one year claim. If that instruction is right, others in the case are immaterial, as is conceded on both sides, because that being right, others, if erroneous, would not affect the result. The defendants took possession by reason of the lease and paid rent. They were then tenants. The lease did not pass to them the term which it purported to pass, it is true; it passed no distinct term. The statute makes the lease in- effectual to pass the term of over five years, or any term; but it does not say it is void, or void for all purposes. It simply does not pass an estate. But when, under its color the lessees became tenants, a tenancy was established. What kind of tenancy? The decided weight of authority is that when a lease is made not complying with the statute of frauds, and possession is taken, there arises, by operation of law, a tenancy from year to year. "This implied tenancy, from year to year, will arise in case where occupation is had under parol demise for years void because exceeding the period allowed by the statute of frauds." Taylor, Landl. & Ten., sec. 56. "An entry under a lease for a term at the annual rent, void for any cause, and a payment of rent under it, creates a tenancy from year to year upon the terms of the lease except as to its duration." Wood, Stat. Frauds, sec. 22, p 56. The lease is admissible evidence, not to pass a term, not to give title for the term it names, but to show some kind of a tenancy exists and to show its term and conditions. So says Wood ubi snpra. See 1 Washb. Real Prop., sec. 823. II writing ton v. Parkhurst, 24 Am. St. R. 146; 87 Mich. 38; Schulyer v. Liggett, 2 Cow. 660; Coudert v. Colin, 118 N. Y. 309. In Reeder v. Sayre, 70 N. Y. 80, the court says such a void lease may be repudiated as soon as made by either party, because it docs not of its own force bind them, but possession and payment of rent make it a tenancy from year to year and that then, though the lease is void as to term and interest in the land, yet it regulates the relation of the parties in other respects, and may be resorted to to determine their rights in all things consistent with and not inapplicable to a tenancy from year to year. But our own court in Allen v. Bartlett, 20 W. Va., said "although a parol lease for more than one year is invalid under the statute of frauds, yet if a person enters into possession under a parol lease for four years, and holds over into a second year, he becomes a tenant from year to year upon the terms of the parol lease and so continues as long as he remains in possession without any new or other agreement."

In Miller v. Wisner, 45 W. Va 59, we said that though a contract for service more than one year was void, yet after service there could be action for compensation, and the contract could be used to furnish measures of recovery. Just so in this case, it fixes the rent. Many cases hold this view. 'Nash v. Berkmeir, 83 Ind. 539; Larkin v. Avery, 23 Conn. 315; Caret v. Clark, 5 Ore. 464, and others. Counsel for defendants relies upon Unglish v. Marvin, 128 N. Y. 380, holding apparently different views. In reference to this case I may safely say, that if to he construed as holding counter to the position above stated, it is counter to numerous New York cases. Apparently it does hold hostile doctrine, but the judge delivering the opinion does not think so, because he says the relation of the landlord and tenant did not arise under the particular agreement in that case, and also because he expressly states the law to be that an occupancy under a void parol lease for more than a year does create a tenancy from year to year, and cites as proving this, cases cited above. He distinctly says that these cases settled the above stated doctrine, and does not hint any dissatisfaction with them. He based the ruling on the peculiar contract in the case. All I need say of that case is that it admits the above law. We are referred to Jordan v.. Furnace Co., 126 N. C. 143. It was an action to recover damages for refusal to execute a lease pursuant to an oral contract to lease premises for five years. That was an action direct upon the void contract, which alone could give existence to the contract. There being no contract, there was no right of action. The case is not in point. The case of Johnson v. ATbertson, 51 Minn., 333, seems to hold against the doctrine stated; but it admits that the current of English and American authority does hold that entry and payment of rent under a void lease creates a...