Drake v. Board of Education

• Decision Date: 27 November 1907
• Citation: 106 S.W. 650,208 Mo. 540
• Parties: DRAKE et al. v. BOARD OF EDUCATION OF ST. LOUIS.
• Court: Missouri Supreme Court

106 S.W. 650

208 Mo. 540

DRAKE et al. v. BOARD OF EDUCATION OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

November 27, 1907.

1. SPECIFIC PERFORMANCE—CONTRACTS—CERTAINTY.

A renewal of a lease for all time creates a perpetuity contrary to the policy of the law; and, unless it appears from the covenant in the lease by express terms or clearly by implication that the lessee is entitled to a renewal for all time, equity will not decree specific performance of the covenant for that purpose.

2. LANDLORD AND TENANT.

A general covenant in a lease for renewal will not be considered to imply a perpetual renewal, and the lessor is, at most, bound only to give a renewal for one term, and a covenant to renew a lease under the same covenants in the original lease is satisfied by a renewal for another term omitting the covenant to renew.

3. SAME.

A covenant in a lease that "at the end of the term hereby demised this lease shall be renewable" at the option of the lessee, and "every renewal lease shall contain all the covenants * * * herein contained, with these exceptions only, that the covenants for renewal shall be in conformity with the foregoing provisions," provides for one renewal only.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Agreed case without action by George S. Drake and others, trustees of the will of Gerard B. Allen, deceased, against the board of education of St. Louis. From a judgment for defendant, plaintiffs appeal. Affirmed.

The facts of this case are agreed to, and, as they are substantially and tersely stated in brief of counsel for respondent, we will adopt their statement as the statement of the facts in the case, which is as follows: "The controversy in this case was submitted under section 793, Rev. St. 1899 [Ann. St. 1906, p. 757], without formal pleadings as an agreed case without action, and involved the single question as to the construction of the right of renewal under a certain lease made by the respondent, the board of education of the city of St. Louis, of certain property in city block 88, of the city of St. Louis on November 13, 1878, for a term of 25 years, to the late Gerard B. Allen, under whose will the appellants are the testamentary trustees. The original term of 25 years having expired, and the right to a renewal reserved in the original lease having been perfected by proper notice by appellants, the respondent tendered a renewal lease for a further term of 25 years without any covenant of further renewal. Appellants refused to accept this renewal lease as a performance of the renewal covenant in the original lease, and therefore this proceeding is in effect, for a specific performance of the covenant of renewal reserved in the original lease of November, 1878, and involves the construction of that covenant. The lease in question was drawn on one of the printed forms used by the respondent which was made to suit the particular case by cancellation of various parts and writing in the blank spaces of the printed form. The covenant of renewal as set forth in the agreed statement of facts is as follows: `And it is covenanted and agreed, by and between the said parties that at the end of the term hereby demised, this lease shall be renewable at the option of said parties of the second part, their executors, administrators or assigns; the said party of the second part, their executors, administrators or assigns, giving to the party of the first part, in every instance, a notice in writing of their wish to renew the same, at least three months before the end of the term, and in case of failure to give such notice, the said parties of the second part shall be entitled to no further renewal of this lease or of the terms thereby created. And every renewal lease shall contain all the covenants, agreements, clauses, and stipulations herein contained, with these exceptions only, that the convenants for renewal shall be in conformity with the foregoing provisions, and that the annual rents reserved on every renewal shall be six per centum upon the value of the demised premises, exclusive only of improvements placed thereon by said lessee or their legal representatives, if any, which value shall be estimated by two disinterested freeholders,' etc." Respondent conceded that under this covenant appellant was entitled to a renewal lease for 25 years, commencing November 7, 1903, but denied the right of appellants to have inserted in said renewal lease any clause whatever relating to a further renewal of the lease. Respondent, therefore, tendered to appellants a lease, being Exhibit C, as filed with the agreed statement, and claims that the same was a full compliance with the covenant of renewal. Appellants refused to accept this, and demanded a lease with a covenant for one further renewal, and this proceeding was brought for the adjustment of this difference. The circuit court held that the appellants were only entitled to the lease tendered — that is, to a renewal lease for them of 25 years with no covenant for further renewal — and entered judgment accordingly. Appeal was duly perfected. Appellants present the following assignment of errors, to wit: (1) The lower court erred in holding that appellants are entitled only to a new lease for 25 years commencing November 7, 1903, without further renewal. Said new lease should itself be renewable for at least one more like term, in accordance with the express provisions of the original lease. (2) The lower court erred in giving no effect whatever to the following express words occurring right in the covenant for renewal of the original lease here sued upon, specifying what sort of covenant of renewal (actually naming that covenant) shall go into the new lease, to wit: "The covenant for renewal shall be in conformity with the foregoing provisions." (The said "foregoing provisions" here referred to being provisions relating to the sort of notice to be given in case of renewal.)

Jos. G. Holliday and Geo. L. Neuhoff, for appellants. Judson & Green, for respondent.

WOODSON, J. (after stating the facts as above).

1. In the consideration of this case it should be constantly borne in mind, as stated by this court in the case of Diffenderfer v. Board of Public Schools, 120 Mo. 454, 455 25 S. W. 542, 544, that "a renewal of the lease for all time to come is to create a perpetuity, which is against the policy of the law and which it does not favor," and it is further stated that, "unless it appears from the covenant in the lease by express terms or clearly by implication that plaintiffs are entitled to have the lease renewed for all time to come, a court of equity will not decree specific performance of the covenant for that purpose." The respondent does not deny the right of the appellants to have one renewal of the lease, but does contend that they are not entitled to have inserted in that renewal a covenant for any additional renewal. This contention of the respondent is denied by appellants, and they insist that, under the express provisions of the lease, they are entitled to, at least, two, if not perpetual, renewals; that is to say, they are entitled to the renewal conceded by respondents, and have the right to have inserted in the new lease a covenant for, at least, one other renewal.

Appellants base their claim to that right upon the following provisions contained in the original lease, to wit: "And it is covenanted and agreed by and between the said parties that at the end of the term hereby demised this lease shall be renewable at the option of said parties of the second part, their executors, etc. The said party of the second part, their executors, etc. giving to the party of the first part, in every instance, a notice in writing of their wish to renew the same, etc., and in case of failure to give such notice, the said parties of the second part shall be entitled to no further renewal of this lease or of the terms hereby created. And every renewed lease shall contain all the covenants, agreements, clauses and stipulations herein contained, with these exceptions only, that the covenants for renewal shall be in conformity with the foregoing provisions," etc. From this it is argued by appellants that they would be entitled to one renewal by the use of the general words, "this lease shall be renewable," found in the first clause of the paragraph of the lease above quoted, even though no other language regarding renewals had been found therein. And they further contend that by the insertion of the following additional covenant or agreement in the lease, to wit: "In every instance a notice, etc., and every renewed lease shall contain all the covenants, agreements, clauses and stipulations herein contained, with these exceptions only, that the covenants for renewal shall be in conformity with the foregoing provisions," etc. — just after the general covenant above mentioned, shows that it was in the minds of the parties, and that it was their intention and understanding, that more than one renewal was provided for. This contention of appellants is presented with much force and plausibility, and the following authorities are cited in support thereof:

In the case of Syms v. Mayor et al., 105 N. Y. 156, 11 N. E. 369, the city of New York on April 10, 1810, executed to Peter Lorillard a lease demising to him certain premises for a term of 30 years, ending on the last day of May, 1840. The lease was executed by both parties, and in it the city agreed that at the expiration of the term, it would demise the premises to him, his assigns, etc., "for and during the term of twenty-one years, thereafter, with a like covenant for future renewals of the lease as is contained in this present indenture." In 1839 Lorillard assigned the lease to John Syms, who thus became substituted in his place. In April, 1840, the city executed a lease of the same premises to John Syms for another term of 21 years, in which it covenanted that...