Klee v. United States

• Decision Date: 14 October 1931
• Docket Number: No. 6476.,6476.
• Parties: KLEE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

53 F.2d 58 (1931)

KLEE et al. v. UNITED STATES.

No. 6476.

Circuit Court of Appeals, Ninth Circuit.

October 14, 1931.

Robertson & Smith, of Spokane, Wash., for appellant.

Roy C. Fox, U. S. Atty., and E. J. Farley, Asst. U. S. Atty., both of Spokane, Wash.

Before WILBUR and SAWTELLE, Circuit Judges.

SAWTELLE, Circuit Judge.

The sole question presented in this appeal is whether the evidence upon which appellants were convicted was obtained through an illegal search and seizure of the dwelling house that they were occupying as asserted sublessees.

Before the trial, appellants moved to suppress all of the evidence against them, supporting their motion by affidavits. These affidavits set forth that on October 25, 1930, three prohibition agents entered their dwelling without a search warrant or other warrant, and, in the course of a search, seized a still and "accessories."

The officers' entry into the dwelling was sought to be justified by the terms of a lease given by the proprietor of the farm to one Hill. This lease is set up in the affidavit of Paul Helmer, one of the executors of the will of the proprietor, who has died. In the affidavit, Helmer asserts that he gave the federal officers permission to enter the premises for the purpose of searching.

The lease contained the following provision: "It is agreed that this lease is non-assignable without the written consent of the first party, and any assignment of this lease or sublease of said premises, or any portion thereof, without the consent of the first party, shall be void."

In his affidavit, Helmer denied giving such consent to the sublease.

An affidavit filed by the appellants denied that they were trespassers, claimed that they were occupying the dwelling under a subletting of the premises made by said Hill, and denied the authority of Helmer to give any one the right to enter and search the house. Under the terms of the lease, the owner had reserved "the right to go upon said premises at any time he deems necessary," etc.

Decision of this controversy hinges upon the question of whether or not the appellants were trespassers. If they were trespassers, they cannot claim the benefit of the Fourth Amendment; if they were not, they can.

Under the circumstances of the lease and under the Washington statute, they were at least "tenants by sufferance" and not trespassers: "Whenever any person obtains possession of premises without the consent of the owner or other person having the right to give said possession, he shall be deemed a tenant by sufferance merely, and shall be liable to pay reasonable rent for the actual time he occupied the premises, and shall forthwith on demand surrender his said possession to the owner or person who had the right of possession before said entry, and all his right to possession of said premises shall terminate immediately upon said demand." Section 10621, Rem. Comp. Stats. Wash. vol. 3, pp. 2946, 2947.

In the instant case, there is no showing that either the owner or the lessee made any demand upon the appellants to vacate the premises.

Under the Washington decisions, no one else had the right to complain; hence the appellants were there "under a color of right." In Beebe et al. v. Tyra et al., 49 Wash. 157, 94 P. 940, 942, the court said: "The stipulation in the Clark lease prohibiting any sale of intoxicating liquors in the building to be erected by Clemmer is not a covenant which can be enforced against the assignees of Clark and wife by parties occupying the position and contractual relations of respondents. In fact, the stipulation is not a mere covenant. It is a condition subsequent inserted in the lease for the personal benefit and protection of Clark and wife, which they could waive, or, in the event of its breach, could enforce at their option, by forfeiture of the tenancy and action of unlawful detainer, or by an action in equity, or by an action at law for damages. Respondents were not parties to the original lease, which contained the condition subsequent, upon the performance of which Clemmer's term depended. The condition was not inserted for their benefit. No one can sue upon a covenant except the covenantee, the assignee of the covenantee, or some person for whose benefit the covenant was made. The Clarks were the covenantees. The respondents never made any contract with them, nor did they afterwards become their assignees." (Italics our own.)

See, also, Teater v. King, 35 Wash. 138, 76 P. 688, 691, in which the court said: "Whether the tenancy of Spores & Gavin, as between themselves and the executor, was created with all the formalities required by the statute, is not pertinent to this appeal, as we view the record. The executor is not attempting to dispute the validity of the original lease between Mrs. Dodds and Spores & Gavin, or of the alleged rights of appellant as their assignee under such instrument. Can the respondent properly raise that question in the present controversy? We think not."

Similarly, the Supreme Court of California, in J. S. Potts Drug Co. v. Benedict et al., 156 Cal. 322, 104 P. 432, 434, 435, 25 L. R. A. (N. S.) 609, a case in which, as here, one of the terms of the lease was that there should be no transfer thereof without the approval of the lessor, used the following language: "Nor would the assignment of the lease have been void if such consent had not been obtained from the lessor. `It seems to be the law that where there is a clause in a lease that it shall not be assigned without the previous consent of the lessor, and there is a breach of the covenant not to assign, the lessor has only the option to forfeit the lease for the breach of the condition, and that the assignment is not void, but passes the term, and the only remedy is for breach of the covenant; and it has been held that the assignment is voidable only at the option of the lessor or his representatives.' Garcia v. Gunn, 119 Cal. 315, 319, 51 P. 684."

The foregoing cases bear out the general principle laid down in 35 Corpus Juris, 979: "Restrictions against assignment or subletting imposed by the terms of the lease are intended for the benefit of the lessor and his assigns, and if neither of these objects to a breach of the restriction no one else may do so."

Similar views have been expressed by Supreme Courts in other circuits. Thus, in Webster et al. v. Nichols et al., 104 Ill. 160, 171, the court said: "The clause in the lease providing that the premises shall not be assigned without the written assent of the lessors, is clearly for the benefit of the lessors only. It does not render the assignment, when otherwise made, absolutely void, but voidable only, at the option of the lessors or their representatives."

So, also, Eldredge v. Bell, 64 Iowa, 125, 19 N. W. 879, 881: "Now, while it appears that the plaintiff held under the decedent's lessees, and while their lease, as appears, provided that it should not be assigned, yet the fact of such provision, and the violation thereof, did not, we think, work a forfeiture, in the absence of any declaration of forfeiture. * * *"

In Taylor's Landlord and Tenant (9th Ed.) vol. 1, pp. 508, 509, we find the principle thus correctly stated: "The covenant against assignment being for the benefit of the lessor only, an assignment made without his consent is not void, but voidable merely. And the assignment does not work a forfeiture without a declaration to that effect, contained in the lease."

It may be contended that the lease in the instant case provides that any sublease without the written consent of the lessor shall be "void," and not merely "voidable." A complete answer to this objection, however, is found in a Supreme Court opinion, which, in the half century since it was rendered, has met with no criticism or limitation from that highest tribunal. In Ewell v. Daggs, 108 U. S. 143, 148, 149, 2 S. Ct. 408, 412, 27 L. Ed. 682, a case highly apposite, on the law, to the cause now before us, Mr. Justice Matthews said: "It is quite true that the usury statute referred to declares the contract of loan, so far as the whole interest is concerned, to be void `and of no effect.' But these words are often used in statutes and legal documents, such as deeds, leases, bonds, mortgages, and others, in the sense of voidable merely, that is, capable of being avoided, and not as meaning that the act or transaction is absolutely a nullity, as if it had never existed, incapable of giving rise to any rights or obligations under any circumstances. Thus we speak of conveyances void as to creditors, meaning that creditors may avoid them, but not others. Leases which contain a forfeiture of the lessee's estate for non-payment of rent, or breach of other condition, declare that on the happening of the contingency the demise shall thereupon become null and void, meaning that the forfeiture may be enforced by re-entry, at...