Central Union Trust Co. v. Blank

• Decision Date: 30 July 1926
• Docket Number: No. 25344.,25344.
• Citation: 210 N.W. 34,168 Minn. 312
• Parties: CENTRAL UNION TRUST CO. OF NEW YORK et al. v. BLANK.
• Court: Minnesota Supreme Court

210 N.W. 34

168 Minn. 312

CENTRAL UNION TRUST CO. OF NEW YORK et al. v. BLANK.

No. 25344.

Supreme Court of Minnesota.

July 30, 1926.

Appeal from Municipal Court of Minneapolis; Manley L. Fosseen, Judge.

Action by the Central Union Trust Company of New York and others against Sam Blank for unlawful detainer. From a judgment for plaintiffs, defendant appeals. Affirmed.

Schwartz & Halpern, of Minneapolis, for appellant.

Kingman, Cross, Morely & Cant, of Minneapolis, for respondents.

DIBELL, J.

Action in unlawful detainer in the municipal court of Minneapolis. There was judgment for the plaintiff and the defendant Sam Blank appeals.

1. We assume that the defendant should have been allowed to prove the facts, as he claims them to be, under his plea of not guilty, or, if not, that he should have been allowed to file an answer alleging them, and we shorten our opinion by treating such facts as proved.

The plaintiffs, as trustees under a deed of trust from John E. Andrus, are the owners of property in Minneapolis of which Andrus, as owner, made a 99-year ground lease, dated February 1, 1901, of which the defendant Sam Blank, by assignment in 1921, became the owner. The present rental is $3,400 a year, payable in quarterly installments commencing on February 1, "and further and in lieu of additional rent" the lessee agrees to pay taxes and assessments. The habendum and reddendum clause is as follows:

"To have and to hold the said demised premises with the appurtenances unto the said party of the second part, its successors and assigns, from the first day of February, A. D. 1901, for and during and unto the end of the full term of ninety-nine (99) years thence next ensuing and fully to be completed and ended, yielding and paying therefor as rent unto the said party of the first part, the yearly rent of two thousand seven hundred and sixty dollars ($2,760) in gold coin of the United States of the present standard of weight and fineness, in equal quarterly payments in advance, on the first days of the months of February, May, August and November in every year during the first twenty (20) years of said term, and further and in lieu of additional rent, paying all taxes and assessments of every kind and nature, which may be levied upon or assessed against every part of said leased premises during said term, by whatever authority or for whatever purpose. Such taxes and assessments to be paid in every instance before any penalty can accrue for nonpayment and before the same shall become delinquent. And in consideration of the premises, the said party of the second part, for itself, its successors and assigns, does hereby covenant and agree to and with the said party of the first part, his heirs, executors, administrators and assigns, that said party of the second part will, and its successors and assigns shall, at all times during the continuance of this lease, whether during aforesaid term or any further term, under or extension of this lease, pay the rents which may become payable under this lease, and all taxes and assessments which may be levied upon or assessed against the said leased premises, or any part of the same, promptly and as provided above."

The lease provided in reference to a default either in the payment of rent or taxes as follows:

"It is further agreed between the parties hereto, as one of the conditions upon which this lease is made, that if the said party of the second part, its successors or assigns, shall make default for the space of sixty (60) days in the payment of said rent, taxes or assessments, when any of the same become payable, or in the performance of any of the covenants or agreements on the part of the said party of the second part to be performed, then and from thenceforth this lease may, at the election of the first party, become ended and determined, and all rights of the said party of the second part, its successors and assigns, thereunder, shall, at the election of the first party, be forfeited and lapse as fully as if this lease had expired by lapse of time, * * * and the party of the first part, his executors * * * shall at once have all the right of re-entry * * * which they would have upon the expiration of the lease by lapse of time finally."

By statute, G. S. 1913, § 6807, in force when the lease was made, it was provided that where a lessor had a right of entry the bringing of an action for possession was equivalent to a demand for rent and a re-entry; but if before possession delivered the lessee paid the rent in arrears and costs of action and performed the other covenants of the lease he should be restored to possession and hold under the lease. An amendment of 1917, Laws 1917, c. 428, now embodied in G. S. 1923, § 8187, provided that if the lease was for more than 20 years re-entry could not be made into such land or such action commenced by the lessor unless, after default, he served upon the lessee, and lien creditors, a written notice that the lease would be terminated unless payments in default be made and the covenants in default be performed within 30 days after the service. It was a further provision of the amendment that the lessee, within 6 months after possession obtained, might pay the plaintiff, or bring into court the amount of rent in arrears with interest and the costs of action and perform the other covenants, and then be restored to possession and hold under the original lease. For more than 60 days prior to October 5, 1925, taxes in a sum exceeding $6,500 had been delinquent and a penalty had attached. On that day the plaintiff gave Blank written notice that unless the taxes were paid within 30 days after service the lease would end and determine. The defendant received the rent due to October 31, 1925. He accepted rent when the defendant was greatly in default in the payment of the 1922 and 1923 taxes, and when the whole $6,500 was in default. The claim of the defendant is that the receipt of the rent was a recognition of the lease as an existing one and operated as a waiver of a right to terminate it for default in payment of taxes. Substantially this is his whole defense.

The general rule is well understood to be that the receipt of rent waives prior forfeitures known to the lessor. Gluck v. Elkan, 36 Minn. 80, 30 N. W. 446 (covenant to keep premises in condition); Kenny v. Seu Si Lun, 101 Minn. 253, 112 N. W. 220, 11 L. R. A. (N. S.) 831, 11 Ann. Cas. 60 (nuisance through sale of opium); Zotalis v. Cannellos, 138 Minn. 179, 164 N. W. 807, L. R. A. 1918A, 1066 (covenant against subletting...