Koeber v. Somers

• Citation: 84 N.W. 991,108 Wis. 497
• Parties: KOEBER v. SOMERS.
• Decision Date: 08 January 1901
• Court: United States State Supreme Court of Wisconsin

108 Wis. 497

84 N.W. 991

KOEBER

v.SOMERS.

Supreme Court of Wisconsin.

Jan. 8, 1901.

Appeal from superior court, Milwaukee county; O. T. Williams, Judge.

Action by William Koeber against Peter J. Somers on an implied covenant in a lease. From a judgment for plaintiff, defendant appeals. Reversed.

On August 25, 1893, defendant leased to plaintiff for five years, at the rate of $83.33 per month, “the certain two-story frame building known and numbered 264 West Water street, and the real estate upon which the same is situated.” The building was a somewhat dilapidated frame building of advanced age, consisting of a store and an imperfect second story, 20 feet front. At the time of the leasing an equally dilapidated frame building belonging to one Lange stood about six feet south of the leased building, and between the two was an old stairway, used in common to reach the second floor of both buildings. These steps were supported on one side by cleats nailed to the leased building and on the other by uprights a foot or two from Lange's building. At the top was a platform extending from building to building, and giving access to both. In May, 1895, Lange proceeded to tear down his building, and to excavate for the erection of a new one up to his line, which was about one foot south of the leased building, thus necessitating the removal of the stairs. Thereafter plaintiff continued to occupy the ground floor as a store, making no use of the second story, and paid his rent without objection or protest up to the end of the lease. He brings this suit alleging the removal of the stairs by other parties, his resulting deprivation of the use of the upper story, and damage in the sum of $1,000. The jury allowed him $8.33 per month for the remainder of his leasehold term,--$333.20. It appeared that plaintiff, in January, 1896, caused suit to be commenced by his then attorneys, Felker, Goldberg & Felker, against this defendant, for damages resulting from the partial eviction, predicated upon breach of an implied covenant for quiet enjoyment. Defendant offered in evidence a written acknowledgment from Felker, Goldberg & Felker of settlement of said action for the sum of $25, paid December 10, 1896. In order to qualify it for admission, defendant offered Mr. Felker as a witness, and having, by him, established the fact that he was attorney, and that the written agreement was made and delivered, and the amount therein specified paid, asked him whether or not plaintiff authorized the making of that settlement. He replied that he could not give that information except as the result of communications between plaintiff and himself in the capacity of client and attorney, and submitted to the court whether he should state it. The question being objected to by plaintiff, the court ruled that it called for privileged communications, and sustained the objection. Plaintiff was asked if he received the $25 so paid Felker, Goldberg & Felker, or any part of it, and objection thereto was sustained. The evidence was conflicting as to whether plaintiff consented to the removal of the stairs. Upon the verdict, judgment was rendered for plaintiff, from which defendant appeals.Jared Thompson, Jr., for appellant.

Turner, Pease & Turner, for respondent.

DODGE, J. (after stating the facts).

Two interesting and important questions are presented, which go to the ultimate question of liability, and obviate necessity for considering other assignments of error which reach only to the correctness of the trial and procedure. Those questions are: First, the existence of any covenant by defendant for plaintiff's quiet enjoyment of the demised premises; second, the right of defendant to prove, by testimony of plaintiff's former attorney,the giving to him of authority to make a settlement of plaintiff's demand, which he did in fact make.

1. At common law, as is elementary, from the ordinary words of grant or demise in an instrument relating to real estate were implied certain covenants; among others, that the grantor had the right to convey, and that he would protect the grantee from lawful interference by others in enjoying the demised premises. This is called a covenant for quiet enjoyment. Eldred v. Leahy, 31 Wis. 546. Our statute, however (section 2204), reversed the rule of the common law, and provided that “no covenant shall be implied in any conveyance of real estate.” This would seem final but for certain decisions in New York, whence we took the words above quoted, and but for the declaration very recently made by this court in Shaft v. Carey, 83 N. W. 288, that: “The statute (section 2204, Rev. St. 1898) to the effect that no covenant shall be implied in any conveyance of real estate, whether such conveyance contains special covenants or not, does not apply to leasehold estates. This is the rule now established in New York, from which our statute was taken, although a different conclusion was at first arrived at. Mayor, etc., v. Mabie, 13 N. Y. 151.” On examining the authority there cited, we find it to relate to a lease for only three years, but to adopt the reasoning of Chancellor Walworth in Tone v. Brace, 11 Paige, 566, which related to a lease for five years. In those cases it was held that the term “conveyance” did not include leases for years, repudiating the reasoning of an earlier case, where it was held that a lease for five years was a “conveyance of real estate,” because another statute of that state (section 36, c. 3, p. 762, 1 Rev. St. N. Y.) provided that the term “real estate” should include all interests in land except a leasehold for not exceeding three years. The subject has received no elaboration or discussion in later New York decisions. In some cases Mayor, etc., v. Mabie has been cited merely to support the proposition that implied covenants exist in leases for less than three years. Vernam v. Smith, 15 N. Y. 327;Edgerton v. Page, 20 N. Y. 281;Boreel v. Lawton, 90 N. Y. 293;Vann v. Rouse, 94 N. Y. 401. In others it is assumed that no lease for years, though exceeding three, is within the statute excluding such covenants. Graves v. Berdan, 26 N. Y. 498;Mack v. Patchin, 42 N. Y. 167; Grover, J., in Burr v. Stenton, 43 N. Y. 462, 464. While in still others, including the latest utterance we have found on the subject, the statute is, without argument, assumed to exclude implied covenants from leases longer than three years. Church, J., in Burr v. Stenton, supra; Coffin v. City of Brooklyn, 116 N. Y. 159, 22 N. E. 227. Thus it is by no means clear that Tone v. Brace and Mayor, etc., v. Mabie correctly declare the law, even of New York, as to their statute. Whether they do or not, however, the views expressed in them are in direct conflict with section 2242 of our statutes, which clearly includes within the term “conveyance” all leases for more than three years, and has been so treated whenever referred to. Eldred v. Leahy, supra; Topping v. Parish, 96 Wis. 378, 382, 71 N. W. 367. It provides: “The term ‘conveyance’ as used in this chapter, shall be construed to embrace every instrument in writing by which any estate or interest in real estate is created, aliened, mortgaged or assigned or by which the title to any real estate may be affected in law or equity, except wills and leases for a term not exceeding three years.” New York had no such section in the chapter containing the original of our section 2204 (section 140, c. 1, p. 738, 1 Rev. St. N. Y.). True, there existed a section in the same words, but in another chapter, devoted to the recording of conveyances (section 38, c. 3, p. 762, 1 Rev. St. N. Y.); but it was never referred to as affecting the interpretation of section 140, c. 1. It is, therefore, apparent that decisions of New York courts are not controlling as to the scope of section 2204, so far, at least, as they conflict with the interpretation expressly and without ambiguity given it by the legislature in section 2242. Considering our own statute, then, as an original proposition, there is no ambiguity. The words and the intent of the legislature are clear to the effect that no covenant shall be implied in any conveyance of real estate, and that a lease for more than three years is such a conveyance. This court cannot properly change or ignore that legislation. Our declaration in Shaft v. Carey, above quoted, if adhered to, would have that effect, and we hasten to avail ourselves of this early opportunity to withdraw it; the more readily because in the few months since it was uttered it cannot have become so established as a rule of property as to affect in very considerable degree vested rights; certainly not the rights of the parties now under consideration, for they had become fully settled--nay, had been tried in the superior court--before the decision of Shaft v. Carey. The result reached in that case did not necessarily depend on the rule of law so announced, for that was not an action to recover for breach of any implied covenant, but was a suit to enjoin one holding under and in the right of the lessor from doing acts invasive of rights granted by the lease itself. The duty of the lessor to refrain from voluntarily and unnecessarily interfering with the possession he himself has granted stands on very different ground from his liability to respond in damages when that possession is disturbed by another under a superior title. The rights of the lessee were not predicated upon implied covenant, nor did the briefs of counsel discuss the subject, nor did the court have its attention called to section 2242 as affecting section 2204. We hold, therefore, that in the lease from defendant to plaintiff there was no implied covenant to defend the latter from interruption of his use of a portion of the premises by the acts of Lange upon his adjoining premises, under his superior title, and that plaintiff cannot maintain this action for damages founded upon breach of such covenant. The refusal of...