Biddle v. Hussman

• Decision Date: 31 October 1856
• Citation: 23 Mo. 597
• Parties: BIDDLE, Respondent, v. HUSSMAN et al., Appellants.
• Court: Missouri Supreme Court

23 Mo. 597

BIDDLE, Respondent,

v.HUSSMAN et al., Appellants.

Supreme Court of Missouri.

October Term, 1856.

1. A. having leased a lot to B. for a term of years, joined with others, the owners of adjoining lots, in a deed of conveyance by which a portion of the lot leased was conveyed to the city of St. Louis; this deed contained the following clauses: “It being understood that some of said first parties have made leases for portions of the wharf property hereby conveyed, the terms of which have not expired; and the conveyance to the city is made by said first parties subject to said leases now in existence;” the portion thus conveyed by A. to the city of St. Louis was duly condemned and appropriated to public uses. Held, in a suit brought by A. against B. to recover the whole of the rent reserved, that the conveyance to the city carried with it, as incident to the part of the reservation conveyed, a proportionate part of the rent, the above clause not amounting to a reservation of the rent to the grantor.

2. The condemnation and appropriation to public uses of a portion of a lot leased for a term of years, will extinguish a proportionate part of the rent, and entitle the parties--landlord and tenant--to compensation according to their respective rights.

3. In determining the proportionate part of the rent due to the landlord for the portion not appropriated to public uses, the jury must have reference, in making their estimate, to the real value to the tenant of what is left uncondemned, and not merely to the quantity.

Appeal from St. Louis Land Court.

This was an action to recover rent alleged to be due plaintiff. Under instructions given by the court, which it is unnecessary to set forth, a verdict was rendered for plaintiff for the whole rent reserved. The opinion of the court sufficiently sets forth the facts.

I. T. Wise, for appellants, cited 1 Co. on Litt. 143 a, 151, 448, 482; 8 Cowen, 206; 18 Gilb. on Rents, p. 30, 59; 8 Cowen, 209, 728; 2 Co. Inst. 412; Cruise Dig. T. 17, § 19; 4 Kent's Com. 356; 3 Id. 470; 2 East, 575; Taylor's Land. & Ten. 183, 219; Jackson v. Eddy, 12 Mo. 209; 3 Camp, 513; 25 Wend. 445; 1 Ld. Raym. 77; Waters' case, 3 Coke, 22; 11 Ala. 63; Const. of Mo. art. 3, sec. 7; Sess. Acts, 1853, p. 248; 15 Wend. 464; 11 Ohio, 408; 24 Wend. 254; 11 Platt on Leases, 151.I. H. Keim, for respondent, cited 1 Hilliard on Real Property, 225, 257; Fowler v. Botts, 6 Mass. 63; Parks v. City of Boston, 15 Pick. 198; 24 Wend. 254; Foote v. City of Cincinnati, 11 Ohio, 408; Fotts v. Huntly, 7 Wend. 210; Ellis v. Welch, 6 Mass. 246; Frost v. Earnest, 4 Whart. 86.

LEONARD, Judge, delivered the opinion of the court.

Biddle's conveyance to the city embracing part of the lot that he had previously leased to Hussman, the first question is as to the effect of that conveyance upon the rent reserved on the prior lease. Littleton (sec. 228) says, “that, by a grant of a reversion, the rent passes;” and Coke, in his commentary upon it, tells us “the reason thereof is, because the rent is incident to the reversion, and passes by the grant of the reversion, as with the superior, without saying cum pertinentiis.” Gilbert, in his book on Rents, (p. 174,) speaking in reference to the question whether a rent service incident to the reversion may be apportioned by the grant of part of the reversion, says: “It seems formerly to have been doubted whether, upon such a grant, there could be any apportionment, or whether the whole rent should not be extinguished and lost; for, since the reversion and rent incident thereto were entire in their creation, they thought it hard that, by the act of the lessor, they should be divided, and thereby the tenant made liable to several actions and distresses therefor. But the conception was too narrow and absurd to govern men's property long; for, if I make a lease of three acres, reserving three shillings rent, as I may dispose of the whole reversion, so may I also of any part of it, since it is a thing in its nature severable, and the rent, as incident to the reversion, may be divided too, because that, being made in retribution for the land, ought, from the nature of it, to be paid to those who are to have the land on the expiration of the lease. And hence it is that the rent passes immediately with the reversion, without any mention of it in the grant.” The effect, therefore, of Biddle's conveyance to the city was to transfer to the latter a proportionable part of the rent, unless the particular clause in the deed to which we have been referred had the effect of severing the rent from the reversion and reserving it to the grantor. The words of the clause are: “It being understood that some of the said first parties have made leases for portions of the wharf property hereby conveyed, the terms of which have not expired, this conveyance to the city is made by the said first parties, subject to said leases now in existence.” These are not apt words of exception, reserving from the operation of the grant something that otherwise would have passed, and they do not import in their ordinary signification that the grantor thereby holds back and excepts from his grant something that the grantee would otherwise have taken under it. They refer to the condition of the grantor in reference to the land he is disposing of, and then declare that the grantee takes it subject to...