Howard v. Manning
| Decision Date | 07 September 1920 |
| Docket Number | 9770. |
| Parties | HOWARD ET AL. v. MANNING. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A lease is a contract between the lessor and lessee, vesting in the latter a right to the possession of the land for a term of years. It becomes an estate when it takes effect in possession.
Under the common law no estate for years can be created by a lease or other common-law conveyance, without an actual entry made by the person to whom the land is granted. However, upon the execution of the lease, the lessee acquires an interest called an interesse termini, which he may at any time reduce into possession by an actual entry, and this may be done by the lessee himself, or, in case of his death, by his executors or administrators.
The death of the lessor before the lessee enters into possession in no way affects the validity of the lease or the right of the lessee to take possession.
The lessee's covenant not to assign or sublet or permit any other person to occupy the premises during his term is indivisible and entire, and not apportioned by the death of the lessor among the lessor's heirs, so that less than all the heirs as tenants in common, or their successors, can enforce a forfeiture of the lease as a whole or proportionately to their interest. All the heirs, or their successors, must concur and unite in an election to enforce the forfeiture on account of the breach of entire and indivisible covenants.
Neither tenant in common has, by virtue of his relationship to his cotenant in common, any authority to act as agent for his companion in either giving a lease or enforcing a forfeiture thereof.
The relation of landlord and tenant does not exist between the lessee of one tenant in common and the other tenants in common of the lessor unless the cotenants not joining in the lease ratify it.
In theory a lease of land by all the tenants in common is not regarded as one lease by all of them of the premises in its entirety, but as several leases by the tenants in common of their undivided separate and respective shares.
The lessee's covenants, unless otherwise expressed, are joint and indivisible under a lease executed jointly by all the tenants in common.
There is an important distinction between the estate of joint tenants and the estate of tenants in common. If all the joint tenants unite in the execution of a lease it is regarded in law as but one lease made by one lessor, whereas a lease executed by several tenants in common is regarded as several leases of their respective and separate shares.
Neither of the tenants in common is entitled to the possession of all the land to the exclusion of his cotenants, nor entitled to possession of any particular part of it. As he cannot exclude his co-tenants by his own occupation of the land, he cannot without their consent or ratification, lease either all or any particular part of the land in such a way that his lessee will have the right to the exclusive possession of all the land or any part thereof.
A lessee of one tenant in common by a lease in which the other tenants have not joined is, as to them, a trespasser so far as he occupies any portion of the land; but the lease is not void as against the tenant in common executing it.
A lessee cannot set up his own default in order to terminate the lease or escape liability under its provisions. If he defaults in keeping covenants in the lease and thus incurs a forfeiture, it is not for him to enforce the forfeiture or rely upon it as terminating the lease. The forfeiture clause is for the benefit of the lessor, and he may elect to waive a forfeiture. The breach of a condition or covenant for which a forfeiture is expressly provided does not automatically terminate the lease. There must be some act upon the lessor's part evidencing his intention to treat the lease as actually forfeited. He may do this by a declaration of forfeiture or by re-entry.
The breach of the lessee's covenant, for which a forfeiture is provided, makes the lease voidable, not at the election of the lessee, but only at the election of the lessor; and any act on the part of the lessor, by word or deed, with knowledge of what has been done, which signifies his intention to affirm the lease, is conclusive evidence of a waiver of the forfeiture.
Error from District Court, Stephens County; Cham Jones, Judge.
Action by R. A. Howard and another, commenced by attachment before a justice of the peace, against H. B. Salmon, to recover a landlord's part of the crops as rent, with intervention by J. R. Manning, claiming the rents under a prior lease. From a judgment awarding intervener two-thirds of the rent and plaintiffs one-third thereof, plaintiffs and defendant bring error. Affirmed.
G. G McVay, of Ardmore, and R. A. Howard, of Newkirk, for plaintiffs in error.
R. C. Drake, of Duncan, and W. G. Long, of Sulphur, for defendant in error.
R. A. Howard and J. C. Holden, plaintiffs in error, commenced this action against H. B. Salmon before a justice of the peace by filing their bill of particulars and affidavit for attachment to recover as rent their part of the crops valued at $150.95, alleged to be due them under an agricultural lease made by them to A. V. Moore, who in turn let the land to defendant, Salmon. The defendant in error intervened, and alleges that he is entitled to recover the rents and profits, that the land was of the rental value of $3 per acre, and prays for judgment against defendant for $360. The case was appealed to the district court and tried on an agreed statement of facts. According to the agreed statement, Simpson, as the owner and allottee of the land, entered into a written lease with J. R. Manning, intervener, whereby he demised, leased, and let the land in question, 130 acres, to Manning for agricultural purposes for a term of one year beginning January 1, 1917. The lessee, among other things, covenanted to deliver peaceable possession to the lessor at the end of the term, the premises to be in as good condition as existed at the time the lease commenced, usual wear and unavoidable accident and loss by fire excepted; covenanted not to suffer any waste thereon, nor to lease or underlet the premises; covenanted not to permit any other person or persons to occupy the same; covenanted not to make, or suffer to be made, any alterations without the written consent of the lessor. The lease also provides:
"That upon the violation of, or default in, any of the preceding covenants and provisions, or the nonpayment of rent, as aforesaid, the said first party may, at his election, declare this lease at an end, and recover the possession of said premises. * * *"
The lease also provides that it shall be unnecessary for the lessor to give the lessee any notice of his election to declare the lease at an end.
According to the agreed statement, the lessor died a few weeks after the execution of the lease, leaving three equal heirs, one of whom conveyed her interest to J. C. Holden and Jesse Kirby. About the 7th day of February, 1917, Holden and Kirby visited the land, and found defendant, H. B. Salmon, "occupying the premises without right." Thereupon they leased the land to A. V. Moore for the year 1917, who in turn rented the premises to Salmon, who occupied the same as Moore's subtenant for the year 1917. Neither the Moore nor Salmon lease or contract is in the record. Kirby sold his interest to Howard, one of the plaintiffs in error. At the time Holden and Kirby purchased the interest from one of the heirs, Manning's lease was on record and they had constructive notice. Soon after this suit was commenced defendant, Salmon, "confessed judgment" for $150.95 for the rent, and paid the same into court subject to the judgment of the court. The first point involved in this case is whether or not Howard and Holden are entitled to all the rent money, or one-third thereof, or any part thereof. Manning claims that his lease is valid and that he is entitled to all the rent. Plaintiffs in error claim that Manning breached the covenants in his lease, that the same was therefore forfeited, and that he had no interest in the land for 1917 or in the rents accruing therefrom. It should be noticed that the other two heirs of Ben Simpson, the lessor, are not parties to this case, and in so far as this record shows make no contention that Manning, the lessee, violated any of the covenants in his lease or that his lease was forfeited. The other two heirs did not join Holden and Kirby in their lease to Moore.
(1) As said by the United States Supreme Court in United States v. Gratiot, 14 Pet. 526, 538 (10 L.Ed. 573): "The legal understanding of a lease for years is a contract for the possession * * * of land, for a determinate period, with the recompense of rent." Raynolds v. Hanna (C. C.) 55 F. 783, 800; Pelton v. Minah Consolidated Mining Co., 11 Mont. 283, 28 P. 310, 311.
Tiedemann on Real Property, § 538, says:
(2) Plaintiffs in error, as successors and owners of the undivided one-third interest of one of the heirs, contend that Manning, as the prior lessee, forfeited his lease by breach of the covenant not to permit any other person or persons to occupy the premises; that Manning, never having been in possession of the land under his lease, acquired no estate for years; and that they, as the owners of an undivided interest in the title, had the power to declare the lease either forfeited in its entirety or forfeited in proportion to their undivided interest in the fee.
The first question in...
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