Bancroft v. Vizard

• Decision Date: 01 May 1919
• Docket Number: 1 Div. 53
• Parties: BANCROFT v. VIZARD.
• Court: Alabama Supreme Court

81 So. 560

202 Ala. 618

BANCROFT v. VIZARD.

1 Div. 53

Supreme Court of Alabama

May 1, 1919

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action by Catherine Bancroft against William Vizard. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Gordon & Edington, of Mobile, for appellant.

Stevens McCorvey & McLeod, of Mobile, for appellee.

SAYRE J.

The controlling question in this case is whether appellee by his agreement in writing with William T. Hieronymus became an assignee or sublessee of an interest in the premises which appellant had in the first place let to the firm of Hieronymus Bros. for a term of years. We can do no better than to quote in this connection the language of the Supreme Judicial Court of Massachusetts in a case cited by appellee:

"To constitute an assignment of a leasehold interest the assignee must take precisely the same estate in the whole or in a part of the leased premises which his assignor had therein. He must not only take for the whole of the unexpired time, but he must take the whole estate, or in other words the whole term; for, in the language of Blackstone, 'the word "term" does not merely signify the time specified in the lease, but the estate also and interest that passes by that lease; and therefore the term may expire during the continuance of the time, as by surrender, forfeiture and the like.' 2 Bl.Com. 144. The grant of an interest therefore which may possibly endure to the end of the term is not necessarily a grant of all the estate in the term. *** Where an estate is conveyed to be held by the grantee upon a condition subsequent, there is left in the grantor a contingent reversionary interest. *** The entire interest does not pass out of the grantor by the same instrument or conveyance. *** These considerations *** apply where, by the terms of an instrument which purports to be an underlease there is left in the lessor a contingent reversionary interest, to be availed of by an entry for breach of condition which restores the sublessor to his former interest in the premises. The sublessee under such an instrument takes an inferior and different estate from that which he would acquire by an assignment of the remainder of the original term, that is to say, an interest which may be terminated by forfeiture on new and independent ground long before the expiration of the original term. If the smallest reversionary interest is retained, the tenant takes as sublessee and not as assignee." Dunlap v. Bullard, 131 Mass. 161.

This is in accord with the modern authorities generally. Bruce Coal Co. v. Bibby, 77 So. 545; 5 C.J. 842 et seq.; 16 R.C.L. p. 825, § 320. A summary statement of this doctrine, taken from 24 Cyc. p. 974, was quoted in Johnson v. Thompson, 185 Ala. 666, 64 So. 554. These authorities would make appellee an assignee of the leasehold, unquestionably, if William T. Hieronymus had made over to appellee his entire interest in the leasehold estate on similar terms. But the fact is, appellee and Hieronymus were forming a partnership for the purpose of carrying on a sawmilling business on the premises which the latter held by assignment from the J.W. Black Lumber Company, which had in its turn taken an assignment from Hieronymus Bros., the original lessees, and to that end had, by the instrument alleged in the complaint, made over to appellee an undivided half interest in the "lease rights, rentals, etc.," described in the assignment from the J.W. Black Lumber Company to William T. Hieronymus, being the same "lease rights, rentals, etc.," described in the original lease from appellant to Hieronymus Bros. Upon the fact that he took an undivided half interest in the leasehold estate and upon the text quoted from the Massachusetts Case--closely followed in Davis v. Vidal, 105 Tex. 444, 151 S.W. 290, 42 L.R.A. (N.S.) 1084--appellee bases his contention that he was a sublessee, not an assignee.

Neither of the cases, supra, upon which appellee relies, involved the peculiar fact made by appellee the cornerstone of his argument. In neither of them was there a transfer of an undivided interest in a leasehold estate. Nor was the doctrine of those cases formulated with reference to any such case, but with specific reference to the question at hand and on the authority of elaborate notes to Kanawha-Gauley Coal & Coke Co. v. Sharp (73 W.Va. 427, 80 S.E. 781) reported Ann.Cas. 1916E, 786, 52 L.R.A. (N.S.) 968. It is said in 16 R.C.L. p. 855, that as a general rule an assignee of an undivided interest is...