De Baca v. Fidel, 6040
| Decision Date | 09 May 1956 |
| Docket Number | No. 6040,6040 |
| Parties | Rosalia Sandoval C. DE BACA, Plaintiff-Appellant, v. John FIDEL, Joe Fidel, T. M. Fidel, Rosa S. Nidor, Nazim Joseph Nidor, Continental Bus System, Inc., Transcontinental Bus System, Inc., and Horace P. Vandeventer, d/b/a Yellow Cab Co., Defendants-Appellees. |
| Court | New Mexico Supreme Court |
B. C. Hernandez, Jr., Albuquerque, for appellant.
Iden, Johnson & Mechem, Richard G. Cooper, Albuquerque, for appellees.
This is an appeal from a summary judgment entered in favor of defendants and plaintiff appeals. The parties will be referred to as they appeared in the district court.
The material facts are as follows:
On April 1, 1937, the plaintiff leased to John Fidel certain premises in Albuquerque, New Mexico, for twenty-five years, with an option of renewal at the expiration of said term for a further period of twenty-five years. This lease, among other things, contained the following provision:
'The tenant shall not, except by way of mortgage of its leasehold estate to secure some actual indebtedness, assign or transfer this lease without the written consent of the landlord.'
On October 15, 1942, John Fidel assigned the lease to himself as an individual and to Joe Fidel, T. M. Fidel and A. S. Nidor with the consent of the plaintiff. On the same day the defendants executed a paper denominated 'assumption of performance of lease by assignees', as follows:
'The undersigned, John Fidel, Joe Fidel, T. M. Fidel and A. S. Nidor named as assignees in the annexed assignment, do hereby, in consideration of the consent to said assignment by Rosalia Sandoval C. de Baca, accept the assignment, hereby assuming the obligations of the lease assigned and agreeing to perform and to be bound by all of the terms, conditions and covenants thereof to the same manner and to the same extent as if we had been originally designated as lessees therein.'
Thereafter the defendants rented a portion of the premises to one Horace P. Vandeventer and to the Continental Western Lines, Inc., as tenants from month to month of the defendants. The terms of the subletting were for less than the term of the original lease.
On December 15, 1953, the attorney for plaintiff wrote the defendants the following letter:
'This is to advise you that I represent Mrs. Rosalia Sandoval C. de Baca, and that I am writing you in her behalf.
'I do hereby declare, in her behalf, a forfeiture of that certain lease between you and Mrs. DeBaca, dated May 1, 1937, and the assignment thereof dated October 15, 1942, covering (here description), for the reason of your violation of paragraph 'g' of Article II, which provides in part: 'The tenant shall not, except by way of mortgage of its leasehold estate to secure some actual indebtedness, assign or transfer this lease without the written consent of the landlord.'
'Pursuant to paragraph 'e' of Article III of said lease, you are hereby given thirty (30) days written notice to vacate the said premises, more than sixty (60) days having elapsed since your violation of the lease as set forth above.
'You are further notified that Mrs. DeBaca desires to exercise her election to enter upon the demised premises and that she will take possession thereof on January 16, 1954.'
Upon the defendants' refusal to vacate the premises, as requested, the plaintiff instituted this suit for restoration of the property and for damages for withholding the same.
The plaintiff seriously contends that the transaction between the defendants and their above mentioned tenants constituted an assignment or transfer of the lease in violation of the provision thereof. A determination of this question is decisive of this appeal.
Is a covenant in a twenty-five year lease 'not to assign or transfer this lease without the written consent of the landlord', violated by a subletting of a portion of the premises, without the written consent of the landlord, for a period shorter than the unexpired term of the original lease? We think not.
A clear distinction between an assignment of the lease and a subletting of the premises is recognized by the authorities. 35 C.J. p. 991, Section 83; 16 R.C.L. p. 832, Section 329; 51 C.J.S., Landlord and Tenant, Sec. 37 d, p. 556; Hobbs v. Cawley, 35 N.M. 413, 299 P. 1073.
The distinction depends upon the quantity of interest that passes by the transfer, and not upon the extent of the premises involved. As assignment transfers the entire...
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State ex rel. Bingaman v. Valley Sav. & Loan Ass'n
...restraints upon the alienation of property are enforceable, but will be construed to operate within their exact limits. DeBaca v. Fidel, 61 N.M. 181, 297 P.2d 322 (1956). The New Mexico Legislature has adopted this view by adopting the common law in Section 38-1-3, N.M.S.A.1978. Whether a d......
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Cal-Am Corp. v. Spence, CAL-AM
...sublease. May v. Walters, 67 N.M. 297, 354 P.2d 1114 (1960), citing Hobbs v. Cawley, 35 N.M. 413, 299 P. 1073 (1931); DeBaca v. Fidel, (61 N.M. 181, 297 P.2d 322 (1956)). Spears v. Canon De Carnue Land Grant, 80 N.M. 766, 461 P.2d 415, 417 In Hobbs v. Cawley, cited above, the New Mexico cou......
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Spears v. Canon de Carnue Land Grant
...is whether the granting of summary judgment in favor of appellee by the trial court was proper. We hold that it was. De Baca v. Fidel, 61 N.M. 181, 297 P.2d 322 (1956). Appellant contends there was an assignment of the lease which did not operate to increase the rental payments under the ab......
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May v. Walters
...remains a reversionary interest, however small, it is a sublease. Hobbs v. Cawley, 35 N.M. 413, 299 P. 1073; see also De Baca v. Fidel, 61 N.M. 181, 297 P.2d 322. Under point II, appellant argues that appellees were in default at the time the option was to be exercised and, being in default......