Conley v. Gaylock

• Citation: 144 W.Va. 457,108 S.E.2d 675
• Decision Date: 26 May 1959
• Docket Number: No. 11029,11029
• Court: West Virginia Supreme Court
• Parties: Janie CONLEY v. Frank J. GAYLOCK.

Page 675

108 S.E.2d 675

144 W.Va. 457

Janie CONLEY v. Frank J. GAYLOCK.

No. 11029.

Supreme Court of Appeals of West Virginia.

Submitted May 5, 1959.

Decided May 26, 1959.

Syllabus by the Court

1. 'The rule against perpetuities is not a rule of construction, but is an arbitrary, absolute and fundamental canon to prevent indefinite control by a grantor or testator over the devolution of property.' Brookover v. Grimm et al., 118 W.Va. 227, Pt. 4 Syl. .

2. 'At common law a lease to be held at the will of the lessee, is taken to be held also at the will of the lessor. However when a lessee has a present subsisting interest in leased property based on an adequate consideration, the common law rule does not apply, despite a provision in the lease that it may be surrendered at the pleasure of the lessee.' Newsom v. Meade, 102 W.Va. 489, Pt. 2 Syl. .

3. A lease created by a written agreement, based upon a valuable consideration, providing, 'The life of this lease shall be indefinite, being terminated only by the lessees inability to pay the monthly rental, or his decision to move his business to another location', is not void, or otherwise unenforceable because the lessee alone is given the option to continue the operation thereof; nor does such lease violate either the rule against perpetuities or the rule of law relating to restraints upon alienation.

4. 'Parol evidence to contradict, add to, alter, enlarge, or explain a complete written agreement, which is clear and unambiguous, or to vary its legal effect, is inadmissible.' Shaffer v. Calvert Fire Insurance Co., 135 W.Va. 153, Pt. 1 Syl. .

Glyn Dial Ellis, Logan, for plaintiff in error.

Naaman J. Aldredge, Logan, for defendant in error.

CALHOUN, Judge.

This case is before this Court upon a writ of error to the judgment of the Circuit Court of Logan County, rendered on July 28, 1958, in an action of unlawful entry and detainer therein pending.

The basic question presented relates to the proper construction and legal effect of a purported lease in writing, dated February 1, 1957, whereby Janie Conley, hereinafter sometimes referred to as the 'lessor', undertook to lease the real estate in question to Frank J. Gaylock, hereinafter sometimes referred to as the 'lessee', for a monthly rental of $100.

The pertinent provisions of the lease agreement are as follows:

'Witnesseth: That for and in consideration of the rentals hereinafter provided to be paid, the said lessor has this day leased and let unto the lessee, subject to the terms and conditions hereinafter set forth, that certain piece or parcel of real estate located on Highway 119, leading from the City of Logan toward the City of Williamson, W. Va., and otherwise described as follows: bounded on one side by the Baisden Brothers Hardware Company, and bounded on the other side by The Economy Auto Sales Company, together with all buildings and improvements thereon, with exception of a barn situated on the property now occupied. This barn after being vacated by the present occupant on or about May 1, 1957, will come under the same general provisions as the other existing buildings.

'The life of this lease shall be indefinite, being terminated only by the lessees inability to pay the monthly rental, or his decision to move his business to another location. The date of beginning of this lease shall be the 1st day of February, 1956, sic 1957, and continue as set forth above.

'The lessee agrees and binds himself to pay as rental of and for said premises and property herein leased the sum of One Hundred ($100.00) dollars per month. The lessor agrees and binds herself not the raise the monthly rental during the life of this lease.

'The lessor agrees to be liable for the premiums upon any insurance she elects to take out for the protection of the buildings thereon. The lessee agrees to be liable for any insurance premiums upon stock, equipment or any other type of insurance he elects to take out upon his possessions contained within the buildings.

'The lessee shall have the right to alter the buildings and premises in such manner as may be required to fit the needs of his business, at his expense.

'In event of fire or other casualty the lessee shall not be liable for any rental payment until the buildings are placed back into usable condition.

'It is specifically agreed to between the parties of this lease that the lessee shall have the right, and will construct a building or an addition to an existing building upon this property. The lessor agrees that the cost of such building will be returned to the lessee by a monthly deduction from the rental agreed upon equal to one-half of said rental, or $50.00 per month.'

The lessee erected a building on the premises promptly after taking possession, at a cost, according to his testimony of $4,848.44. The building is designed to accommodate the lessee's service station and garage business.

On March 31, 1958, Janie Conley gave to Frank J. Gaylock a certain writing designated a 'Notice To Terminate Tenancy'. Such written notice referred to the tenancy as one 'from month to month', and notified the tenant to vacate the real estate in question 'by midnight on the 30th day of April, 1958.' The tenant declined to vacate the property in response to the written notice, and in due time this action of unlawful entry and detainer was instituted. It was stipulated by counsel for the respective parties that the primary issue involved was one of law, and by agreement such issue was submitted to the court for hearing in lieu of a jury. In addition, each party to the action testified briefly, but the pertinent facts are not materially in conflict.

The controversy centers around the following provision of the lease: 'The life of this lease shall be indefinite, being terminated only by the lessees inability to pay the monthly rental, or his decision to move his business to another location.' The lessor contends that the lease is void ab initio because: (a) The duration thereof is indefinite; (b) it violates the rule against perpetuities; and (c) the rule against restraint upon alienation.

By an order entered on July 28, 1958, the lower court adjudged: '* * * that the Lease involved in the proceedings herein be considered a valid lease, duly executed between the parties, and that said lease created freehold estate approximating a tenancy for life, determinable at the instance of the Defendant or upon his violation of the conditions of the lease. It is, therefore, ordered that Defendant be awarded judgment, and possession of the premises be held by the Defendant and the writ of possession be denied to the Plaintiff.'

'The rule against perpetuities requires that 'every executory limitation, in order to be valid, shall be so limited that it must necessarily vest, if at all, within a life or lives in being, ten months and twenty-one years thereafter, the period of gestation being allowed only in those cases in which it is a factor.' 1 Minor on Real Property (2d Ed.), § 809.' Brookover v. Grimm et al., 118 W.Va. 227, pt. 5 syl., 190 S.E. 697, 699.

In the case of Greene Line Terminal Company v. Martin, 122 W.Va. 483, 10 S.E.2d 901, 903, a leasehold is described as follows: 'A leasehold, separate from the fee from which it has been carved, is property 'which the law recognizes as a thing of value, but is incorporeal and intangible in its nature.' Dillon v. Bare & Carter, 60 W.Va. 483, 490, 56 S.E. 390, 393. Consult: Coal & Coke Co. v. Dillon, 59 W.Va. 605, 53 S.E. 928. A leasehold is 'an estate in realty held under a lease.' Hayes v. City of Atlanta, 1 Ga.App. 25, 57 S.E. 1087, 1089.' Whatever right the lessee obtained by virtue of the written lease agreement, whether termed 'property', 'a thing of value', or 'an estate in realty', he obtained immediately upon the operative date of the lease. It was not a right or estate designed to 'vest' or to become operative at a future date violative of the rule against perpetuities.

'The rule against perpetuities is not a rule of construction, but is an arbitrary, absolute, and fundamental canon to prevent indefinite control by a grantor or...