Kerr v. Kingsbury

• Decision Date: 21 June 1878
• Citation: 39 Mich. 150
• Parties: Amelia Kerr et al., Adm'rs v. Solomon O. Kingsbury, Truman H. Lyon, Samuel P. Bennett et al
• Court: Michigan Supreme Court

39 Mich. 150

Amelia Kerr et al., Adm'rs v. Solomon O. Kingsbury, Truman H. Lyon, Samuel P. Bennett et al

Supreme Court of Michigan

June 21, 1878

Submitted June 12, 1878

Appeal from Kent.

Foreclosure. Complainants appeal.

Decree affirmed with costs.

S. C Hinsdale for complainants. Acceptance of a new lease implies the surrender of the old one, Lyon v. Reed, 13 M & W., 285; Davison v. Stanley, 4 Burr. 2210; 2 Smith's Lead. Cas. (7th Am. ed.), 756; Taylor's L & T., §§ 507, 512; Jungerman v. Bovee 19 Cal. 354; Van Rensselaer v. Penniman, 6 Wend. 579; Logan v. Anderson, 2 Doug. (Mich.), 101; Roberts on Frauds, 254-6; and where the grantor of the premises is also their lessee, there is such unity of title that erections on the premises are included in a mortgage given by him, Jones v. Detroit Chair Co., 38 Mich. 92; Gaskill v. Trainer, 3 Cal. 334; acceptance of a new lease covering erections estops the lessees from questioning their landlord's title to them, Bertram v. Cook, 32 Mich. 518; Tyler on Fixtures, 442; a tenant must remove his erections while he is in possession, id. 452, § 551; Thropp's Appeal, 70 Penn. St., 395; Thomas v. Crout, 5 Bush 37; possession to operate as notice should be inconsistent with the possessor's title, Jones on Mortgages, § 600; Staples v. Fenton, 5 Hun 172; trade fixtures are not removable by the mortgager of the premises on which they stand, Climie v. Wood, 3 Exch. 260; Cullwick v. Swindell, 3 Eq. 249; Holland v. Hodgson, L. R. 7 C. P., 328; Winslow v. Merch. Ins. Co., 4 Met. 310; Roberts v. Dauphin Deposit Bank, 19 Penn. St., 75; Burnside v. Twitchell, 43 N. H., 390; Pettengill v. Evans, 5 N. H., 54; Maples v. Millon, 31 Conn. 598; Arnold v. Crowder, 81 Ill. 56; Bliss v. Whitney, 9 Allen 114; Laflin v. Griffiths, 35 Barb. 58; Jones on Mortgages, § 681; Tyler on Fixtures, 620, 657-8; 1 Washb. R. P., 15; Willard's Eq. Jur., 377.

Blair, Eggleston, Kingsley & Kleinhans for defendants.

OPINION

Cooley, J.

The controversy in this case concerns certain buildings which are claimed by complainant under a real estate mortgage given March 13, 1874, by defendant Solomon O. Kingsbury to their testator. The defendant Lyon, on the other hand, claims them as tenant's fixtures under a lease of the lands mortgaged.

The facts appear to be that the defendant S. O. Kingsbury, on the 25th day of January, 1871, being then the owner of certain premises situated on Calder and Almy streets in the city of Grand Rapids, leased the Calder street lots for ten years from June 1, 1871, to John S. Long and Samuel P. Bennett, constituting the copartnership of Long & Bennett, who took possession and occupied the same for the purposes of a coal and wood yard. The lease contained a provision allowing the lessees thirty days on its termination for the removal of the buildings they might erect. June 1, 1872, a further lease of a portion of the Almy street lots was made by Kingsbury to Long & Bennett, to terminate at the same time with the other, and containing a similar provision respecting the removal of buildings.

In September, 1873, S. O. Kingsbury purchased of Long his interest in the copartnership of Long & Bennett, and assumed his place in the business, which was thereafter carried on in the name of Kingsbury & Bennett. In February, 1874, S. O. Kingsbury conveyed all the lots on the two streets to Gaius P. Kingsbury. This conveyance does not seem to have been understood by the parties as a transfer to G. P. Kingsbury of anything more than the fee subject to the leases, and the business of Kingsbury & Bennett went on as before. In March, 1874, the deed to G. P. Kingsbury in the mean time not having been recorded, S. O. Kingsbury gave to Henry A. Kerr, whom the complainants represent, the mortgage under which they claim. In January, 1876, G. P. Kingsbury gave to Kingsbury & Bennett a new lease of all the lots for five years and five months. This would make the lease terminate at the same time as the former leases, and upon the face of the transaction no reason appears for giving it, unless it was to obtain for the purposes of the business the copartnership was engaged in, the lots on Almy street which were not covered by the second lease.

The buildings the right to which is in dispute in this case, had all been put up as tenant's erections previous to the giving of the Kerr mortgage, and were occupied by the copartnership of Kingsbury & Bennett for the purposes of their business at that time. That firm subsequently became insolvent and made an assignment for the benefit of their creditors to the defendant Lyon, who undertook to remove the buildings as personalty. It is not disputed that, as between landlord and tenant, the buildings would in general have been removable, but it is insisted that under the facts of this case they are covered by the lien of the real estate mortgage.

I. In brief the claim on the part of the complainants that when Kingsbury & Bennett, in January, 1876, accepted from G. P. Kingsbury a new lease, they in contemplation of law surrendered the existing leases, and not having asserted and exercised a right to remove the erections made previously, they thereby abandoned them to their landlord, and could not assert or transfer to any one else the right to remove them afterwards. This is the principal question in the case.

The right of a tenant to remove the erections made by him in furtherance of the purpose for which the premises were leased, is conceded. The principle which permits it is one of public policy, and has its foundation in the interest which society has that every person shall be encouraged to make the most beneficial use of his property the circumstances will admit of. On the other hand, the requirement that the tenant shall remove during his term whatever he proposes to claim a right to remove at all, is based upon a corresponding rule of public policy, for the protection of the landlord, and which is that the tenant shall not be suffered, after he has surrendered the premises, to enter upon the possession of the landlord or of a succeeding tenant, to remove fixtures which he might and ought to have taken away before. A regard for the succeeding interests is the only substantial reason for the rule which requires the tenant to remove his fixtures during the term: indeed, the law does not in strictness require of him that he shall remove them during the term, but only before he surrenders possession, and during the time that he has a right to regard himself as occupying in the character of tenant. Penton v. Robart, 2 East, 88; Weeton v. Woodcock, 7 M. & W., 14.

But why the right should be lost when the tenant, instead of surrendering possession, takes a renewal of his lease, is not very apparent. There is certainly no reason of public policy to sustain such a doctrine; on the...