Barbee v. Greenberg
| Decision Date | 24 April 1907 |
| Citation | 57 S.E. 125,144 N.C. 430 |
| Parties | BARBEE et al. v. GREENBERG. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Durham County; Justice, Judge.
Action by W. R. Barbee and others against A. S. Greenberg. From a judgment for defendant, plaintiffs appeal. Affirmed.
Where a lease to a partnership for three years gave an unrestricted privilege of renewal for three years more, at the option of the partnership, the assignment of one member of the partnership of all his interest therein to the other transferred to the remaining member the right of renewal of the lease, and having complied with all the stipulations of the lease relating thereto, he is entitled to remain in possession of the premises.
Civil action to recover possession of a storehouse, commenced before a justice of the peace, and tried on appeal before Justice, judge, at January term, 1907, superior court, Durham county. A jury trial having been formally waived, the facts were found by the court, and judgment was entered thereon for defendant, and plaintiff excepted and appealed.
Manning & Foushee, for appellants.
Benjamin Lovenstein, for defendant.
It appears from the facts found by the trial judge that the storehouse in question belonged to feme plaintiff, Virginia E. Barbee, and that on the 14th day of August, 1903, she and her husband, W. R. Barbee, executed and delivered to A. S Greenberg and J. Dean, a mercantile firm doing business under the name and style of A. S. Greenberg & Co., the premises in question for three years, ""with the privilege of three years more," from August 11, 1903, at $55 per month; R. W. Winston, Esq., to collect the first year's rent, and W. R. Barbee to collect the balance. That said lease was duly registered, and the lessees entered upon the occupation and possession of the property in the transaction of the firm business. That, some six or eight months after the lease had been executed, Dean sold his interest in the firm to A. S. Greenberg, and A. S. Greenberg continued the business under the firm name of A. S. Greenberg & Co. That W R. Barbee knew that J. Dean had sold his interest to A. S Greenberg about 12 months after the signing of the lease, and continued to collect the rents from A. S. Greenberg to the expiration of the lease. That in May, 1906, before the three years' lease expired, A. S. Greenberg gave formal notice that he had determined to avail himself of That in February, 1906, W. R. Barbee and wife leased the store to their coplaintiff, M. Bane, to commence August 11, 1906, and on that day this suit was instituted in the names of W. R. Barbee and wife and M. Bane against defendant, to recover possession of the property. That, after the institution of the action, the rent was tendered monthly by defendant, which was at first declined; but afterwards, and pending the proceedings, was received and receipted for by W. R. Barbee. Upon these facts, the court adjudged that plaintiffs are not entitled to recover possession of the property, and that defendants are entitled to remain in possession of same for three years from August 11, 1906.
By the terms of the lease, the storehouse was granted to Greenberg & Co. for three years, ending August 11, 1906, "with the privilege of three years more." Whether notice was required to be given during the term of the lessees' election to renew is not material here, for such notice was given, and if the firm of Greenberg & Co., as now constituted, had the right to demand a renewal of this lease for its own benefit, then this right can be made available as a defense to the present action, though the same was instituted before a justice of the peace. McAdoo v. Callum, 86 N.C. 419; Lutz v. Thompson, 87 N.C. 334; Levin v. Gladstein, 142 N.C. 482, 55 S.E. 371.
These covenants to renew are not required to be in any technical form (McAdoo v. Callum, supra; Amer. Eng. Ency. [2d Ed.] vol 18, 685), and, when sufficiently definite, will be enforced as incident to the lease, and, as such, conferring a right which constitutes a part of the tenant's interest in the land itself. This being true, in the absence of any restraining covenant, the right may be assigned as an incident of the lease and the benefit enforced by the assignee, and, being a covenant which runs with the land, it will also be enforced against the lessor or his assigns. Taylor, Landlord & Tenant (9th Ed.)§ 332; Woods, Landlord & Tenant (2d Ed.) § 413; Cyc. vol. 24, 996; Piggott v. Mason, 1 Paige, 412; Betts v. June, 51 N.Y. 274; Blackmore v. Boardman, 28 Mo. 420; McClintock v. Joyner, 77 Miss. 678, 27 So. 837; Cook v. Jones, 96 Ky. 283, 28 S.W. 960; Brook v. Bulkley, 2 Ves. Sr. 497. In Taylor on Landlord and Tenant, it is said: "The right of renewal constitutes a part of the tenant's interest in the land, and, in the absence of a covenant to the contrary, may be sold and assigned by him, and the benefits of the right may be enforced by the assignee." In Wood's Landlord and Tenant, supra, it is said: "A covenant for the renewal of the lease on the landlord's part is often inserted in a lease, and, when it is, it is binding upon the landlord and his grantees or assignees, as such covenants relate to the land and pass with it." And, on page 944, the author further...
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