Congregational Soc. of Sharon v. Rix

• Decision Date: 22 April 1889
• Citation: 17 A. 719
• Parties: CONGREGATIONAL SOC. OF SHARON v. RIX et al.
• Court: Vermont Supreme Court

17 A. 719

CONGREGATIONAL SOC. OF SHARON

v. RIX et al.

Supreme Court of Vermont. Windsor.

April 22, 1889.

Exceptions from Windsor county court; ROYCE, Chief Justice.

Assumpsit for rent by the Congregational Society of Sharon against Rix and Walbridge. The case was referred, and heard on report of the referee, who found that the payment of May 11, 1885, referred to in the opinion, paid all the rent due up to and including the payment due March 12, 1884, but not that due in advance, March 12, 1885, and found for the plaintiff to recover the year's rent which fell due on March 12, 1885. The defendants continued in possession until the June following, and this suit was not brought until the payment of March 12, 1886, had become due. If the defendants continued liable after they had assigned the lease and surrendered possession of the premises, then the referee found that the plaintiff should recover in addition to the payment due March 12, 1885, that one due March 12, 1886. Judgment for plaintiff for the smaller sum found due by the referee. Both parties except.

Lamb & Tarbell, for plaintiff. D. C. Dennison & Son, for defendants.

TYLER, J. The referee reports that March 2, 1825, a committee of plaintiff society by an indenture leased certain lands in Sharon to Abijah C. Mosher and Samuel Barnard for the term of 999 years, reserving an annual rent of $28.50, which the lessees covenanted to pay March 12th in each year, the first payment to be made March 12, 1825; that the lessees subsequently conveyed all their interest in the premises to George Haynes, who, on the 16th day of May, 1878, conveyed his interest to the defendants by quitclaim deed, which contained a stipulation that the premises were subject to an annual rent of $28.50, payable to the plaintiff, and that the defendants were to pay and discharge the same at their own risk and cost from and after March 4, 1877; that the defendants took possession of the premises, and paid the plaintiff. all the rent due to March 12, 1885, but that the advance rent due on that day has not been paid; that plaintiff's treasurer, supposing that the rent was payable at the end of each year, instead of in advance, on the 11th day of May, 1885, gave defendants a receipt in full for all demands to that date; that some time in June of that year the defendants sold and by deed conveyed their interest in the premises to Peoples, who never paid rent to the plaintiff, and never was recognized as its tenant. The plaintiff contends that the defendants, by accepting the deed from Haynes with the stipulation therein, and taking possession of the land under it, assumed performance of that stipulation, and thus in effect assumed performance of the covenants in the original lease; on the other hand, the defendants claim that their conveyance to Peoples, and their discontinuance of possession, operated as a surrender of the lease to the plaintiff. The determination of this question must depend on the effect to be given to the Haynes deed.

The lessees expressly covenanted to pay the rent, and they were bound to pay it, unless they substituted the defendants as tenants under the lease, and the...