Geyer v. Lietzan, 28856
| Decision Date | 23 January 1952 |
| Docket Number | No. 28856,28856 |
| Citation | 103 N.E.2d 199,230 Ind. 404 |
| Parties | , 31 A.L.R.2d 601 GEYER v. LIETZAN et al. |
| Court | Indiana Supreme Court |
Byron E. Bamber, Straley Thorpe, Hammond, for appellees.
On April 20, 1945 Herman J. Holtz and his wife owned, as tenants by the entirety, certain improved real estate in the city of Hammond. On said date they leased this property to appellant for a period of two years beginning May 1, 1945 and ending April 30, 1947.
Pursuant to said lease appellant entered into possession of said property May 1, 1945. On July 10, 1946 Lily Holtz died. On March 27, 1947 appellant served notice upon Herman J. Holtz of his intention to exercise his option to renew said lease for a period of two years. On January 19, 1948 Herman Holtz died, leaving as his sole heirs at law his son Howard J. Holtz and his daughter Margaret E. Lietzan. On March 25, 1948 said Howard J. Holtz conveyed his interest in said real estate to his said sister. On December 14, 1948 Margaret E. Lietzan and her husband Ernest W. Lietzan conveyed this property to Byron E. Bamber as trustee, and on the same day he reconveyed the property to appellees as tenants by the entirety. At all times since they have been the owners of this property.
On March 22, 1949 appellant served notice on appellees of his intention to exercise his option to renew the lease for another two year period from May 1, 1949 to April 30, 1951.
On May 6, 1949 appellees commenced this action in the Superior Court of Lake County, Room 5. Their complaint alleged their ownership and right to immediate possession of the property, the unlawful detention by appellant to appellees' damage in the sum of $1,000. The complaint was accompanied by affidavit for immediate possession. A writ of possession was issued. Appellant posted bond and has ever since retained possession.
Appellant, by his amended answer, set up the matters hereinbefore referred to regarding the execution of the lease which was made a part of said answer. It further alleged he exercised his option in 1947 and the service of notice of his intention to exercise his option on March 22, 1949. It further averred he had paid all rents due and fulfilled all of his obligations under the lease and that appellees were bound by and have ratified the terms of the lease.
Appellees, by their reply, admitted all of the allegations of the answer except they denied they had adopted and ratified the lease. They admitted they refused the rent due under said lease on May 1, 1949, and that rent due on and since said date had been tendered and refused.
At the trial, in addition to facts herein set out, there was evidence as to the rental value of the property.
Trial to the court resulted in finding and judgment that appellees were entitled to immediate possession of said property and damages in the sum of $1,360.
The error assigned here is the overruling of appellant's motion for a new trial. The only specification of that motion relied on by appellant is that the decision of the trial court is contrary to law.
It seems proper to first consider the assertion that this lease conferred upon the appellant the right to perpetual renewals. The law does not favor perpetual leases. A lease will not be construed as conferring a right to perpetual renewals unless it clearly so provides, in language so plain and unequivocal as to leave no doubt that such was the intention and purpose of the parties. A lease will, if possible, be so construed as to avoid a perpetuity by renewal. 32 Am.Jur., Landlord and Tenant, § 968, p. 813; 51 C.J.S., Landlord and Tenant, § 61, p. 606; Vokins v. McGaughey, 206 Ky. 42, 266 S.W. 907, 39 A.L.R. 275, Annotation 279; Brush v. Beecher, 1896, 110 Mich. 597, 68 N.W. 420; Tischner v Rutledge, 1904, 35 Wash. 285, 77 P. 388; Diffenderfer v. Bd. of President, etc., St. Louis Public Schools, 1894, 120 Mo. 447, 25 S.W. 542.
In construing a lease for the purpose of ascertaining the intention of the parties, the court will, if possible, give effect to all its parts. The entire instrument will be considered and its meaning will be determined from a consideration of all its provisions taken together as a whole. All clauses, terms and provisions must be considered in connection with the rest of the lease. Kann v. Brooks, 1913, 54 Ind.App. 625, 101 N.E. 513; 51 C.J.S., Landlord and Tenant, § 232e, p. 852.
The lease provides that: '* * * the lessee shall, at his option, be entitled to the right and privilege of renewing this lease with and under all the terms and conditions thereof, successively, providing that said lessee shall, at least thirty (30) days before the expiration of any two year period of this lease, or any successive renewals thereof, give written notice of his intention so to renew to the lessors; and that upon the 3rd or any subsequent renewal the lessors may, at their option, increase the annual rental over and above the rent herein reserved of Six Hundred ($600.00) Dollars per year in the sum of Sixty ($60.00) Dollars per year for any two year period thereafter.'
It must be conceded that the foregoing language, in isolation, would be strongly indicative of an intention to confer upon the lessee the right to renew the lease indefinitely. We note, however, that the original term and the renewals are for two-year periods only and the lease, with the exception of the provision for successive renewals, contains covenants that usually appear only in short term leases. Nowhere in the instrument do we find any of the appropriate and apt words ordinarily used to create a perpetual lease, such as 'forever', 'for all time,' 'in perpetuity,' etc. We cannot agree that the giving of the right to 'successive renewals' means that such renewals are available to the appellant forever and without end. The word 'successive' imports concatenation. It does not define duration.
The lease provides that the lessee 'at the expiration of this lease herein made or any renewal thereto, will yield up said premises to the lessors in as good condition as when the same shall be entered upon by said lessee. * * *' This provision, while appropriate in short term leases, seems totally inconsistent with the idea that the parties had in mind a term which might last several centuries. The use to which the lessee may put the premises is restricted to 'conducting a general merchandising business,' which would not seem to be a covenant such as one would expect to find in a lease in perpetuity. Construed as a lease in...
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Ginsberg v. Gamson
...drafter. Instead, courts simply will not construe the provision as creating a right to perpetual renewals. (See Geyer v. Lietzan (1952) 230 Ind. 404, 103 N.E.2d 199, 200( Geyer ) [“A lease will, if possible, be so construed as to avoid a perpetuity by renewal”]; Oak Bay Prop. v. Silverdale ......
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Lonergan v. Connecticut Food Store, Inc.
...every provision, if reasonably possible.' Ingalls v. Roger Smith Hotels Corporation, supra; Perruccio v. Allen, supra; Geyer v. Lietzan, 230 Ind. 404, 409, 103 N.E.2d 199. The language in paragraph 14 of the instant lease, insofar as it purports to create in the lessee the right of perpetua......
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...Co., 188 U.S. 646, 23 S.Ct. 443, 47 L.Ed. 635 (1903); Waldrop v. Siebert, 286 Ala. 106, 237 So.2d 493 (1970); Geyer v. Lietzan, 230 Ind. 404, 103 N.E.2d 199 (1952); Vokins v. McGaughey, 206 Ky. 42, 266 S.W. 907 (1924); Brush v. Beecher, 110 Mich. 597, 68 N.W. 420 (1896); Burke v. Permian Fo......
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Howard v. Schildberg Const. Co., Inc., 93-1638
...on whether use of the term "successive" unmistakably indicates a lease of unlimited and unending duration. Compare Geyer v. Lietzan, 230 Ind. 404, 103 N.E.2d 199, 201 (1952) (lease providing for "successive renewals" did not create perpetual lease) and Lattimore, 329 S.E.2d at 350 (the word......