Blackmore v. Boardman

• Decision Date: 31 March 1859
• Citation: 28 Mo. 420
• Parties: BLACKMORE, Appellant, v. BOARDMAN, Respondent.
• Court: Missouri Supreme Court

28 Mo. 420

BLACKMORE, Appellant,

v.BOARDMAN, Respondent.

Supreme Court of Missouri.

March Term, 1859.

1. A covenant for perpetual renewal of a lease is valid.

2. A covenant for renewal of a lease is an incident to the lease and will pass by an assignment of the unexpired term; a sale by the sheriff under an execution of the interest of the lessee in the land will pass to the purchaser the covenant for renewal.

3. The secretary of the board of directors of the St. Louis Public Schools is a proper person to whom to deliver applications for renewal of leases made by said board with covenants of renewal. The declarations of a deceased secretary, made when applied to in behalf of an applicant for renewal before the expiration of the time within which demand of renewal should be made, are admissible in evidence to show that the application for renewal had been received by him as secretary in due time.

Appeal from St. Louis Land Court.

This cause was heard before the supreme court upon the following agreed statement of facts: “This was an action of ejectment brought by the plaintiff Blackmore against the defendant Boardman to recover possession of the premises in the petition mentioned and described, being a lot or parcel of ground situated in the city of St. Louis, containing one arpent and 66-100. The defendant answered, and the cause, by consent, was tried by the court. The facts as they appeared on the trial were as follows: By deed dated October 25, 1847, the board of President and Directors of the St. Louis Public Schools demised and leased to the plaintiff Blackmore a certain tract or parcel of land of upwards of six arpens, of which that mentioned in the petition is part, for the term of ten years, commencing from and after October 15, 1847. Said lease contained a covenant for renewal in the following terms: ‘And it is hereby covenanted and agreed by and between the said parties, that at the end of the term hereby demised this lease shall be renewable for the further term of ten years; and so on from time to time perpetually at the option of the party of the second part, his executors, administrators or assigns, he or they giving to the party of the first part, in every instance, a notice in writing of his or their wish to renew the same three months at least before the end of the term. And every renewal lease shall contain all the covenants, agreements, clauses and stipulations herein contained, with this exception, that the annual rents to be reserved in every renewal shall be six per centum upon the value of the demised premises, exclusive only of improvements thereon placed by the said lessee or his. legal representatives, if any, which value shall be estimated by disinterested freeholders of the city of St. Louis, one of whom shall be selected by the party of the first part, and the other by the party of the second part, his executors, administrators or assigns; and to be paid quarterly.’

“On the 6th of January, 1857, said premises so leased to Blackmore were duly sold by the sheriff of St. Louis county to Augustus W. Lewis under executions on judgments obtained by one William Lingo against said Blackmore in March and May of 1856, and the sheriff conveyed the same to said Lewis by deed dated February 12, 1857, which deed being duly acknowledged was recorded February 23, 1857. A few days after his purchase, Lewis went into possession of that portion of the premises sued for, and while in possession conveyed the whole of said tract of land to John F. Hagne, by deed dated February 25, 1857. The defendant Boardman holds under said Hagne.

Previous to the expiration of the original lease, a notice in writing or application for renewal on the part of Hagne, in due form for that purpose, was left at the office of the board of Public Schools. The evidence on that subject was as follows: The notice was left at the office of said board on July 3, 1857, with a man in the office of said board, but who was not one of the board, who at the time was either dusting or sweeping out the office. The secretary was not in at the time, and the man who was there took the notice with instructions to hand it to the secretary as soon as he should come in. John H. Watson was the secretary at the time to the board. He has since died. He (Watson) a day or two after acknowledged to the witness Kurlbaum--who left the notice at the office of the board July 3, 1857, and who called there to see about the same--that said notice had been received. There was no entry on the minutes of the proceedings of the board showing when said notice was received, though it was shown that the same was officially before the board August 11, 1857, being the second meeting of the board held after said notice was left at the office. To the testimony of the said witness Kurlbaum as to what was said to him by the deceased secretary, plaintiff objected at the time; but the court overruled the objection and plaintiff duly excepted. The covenants of the lease had in all other respects been complied with. Plaintiff Blackmore, within the time provided for that purpose in the clause for a renewal, also made application therefor, and whilst his application was pending on September 15, 1857, Hagne sent into the board a remonstrance in writing against the granting of a renewal to him, setting forth his own claims as assignee and again asking for a renewal to himself. In fulfillment of their covenant for renewal (as they supposed and intended), the board on December 1, 1857, executed the lease to plaintiff Blackmore upon which this suit is founded for a portion of the premises, and for the residue thereof executed leases to other parties holding or claiming under plaintiff. Said leases are dated December 1, 1857, and are for ten years from October 15, 1857, with like covenants of perpetual renewal.

Three questions arose upon the trial, which are the only ones now submitted to the court; all others, whether consisting of defects or errors of pleading or of practice on either side, being hereby expressly waived. The first is, whether the covenant contained in said lease to Blackmore, being a covenant for perpetual renewal, is legal? Second, whether the right of renewal was acquired by Lewis under the sheriff's levy, sale and deed? Third, whether the evidence given by defendant and which was objected to by plaintiff, touching Hagne's notice of application for a renewal, was legal and competent?

The sheriff's notice accompanying the deed is as follows:

By virtue, &c., I have levied upon and seized the following described real estate as the property of the said William Blackmore, to-wit: the unexpired term of a lease for ten years, made October 25, 1847, to said Blackmore by the board of President and Directors of the St. Louis Public Schools on the following described real estate, to wit [describing the tract of six arpens as in the lease]; said lease is recorded in book No. 4, page 254, of the records of St. Louis county, and is on the same property on which Blackmore now lives, with brick house and appurtenances. And I will, on, &c., at, &c., sell at public vendue, for cash, to the highest bidder, all the right, title, interest, claim, estate and property of the above named William...