Latta v. Weiss

• Decision Date: 26 November 1895
• Citation: 32 S.W. 1005,131 Mo. 230
• Parties: Latta v. Weiss et al., Appellants
• Court: Missouri Supreme Court

32 S.W. 1005

131 Mo. 230

Latta v. Weiss et al., Appellants

Supreme Court of Missouri, First Division

November 26, 1895

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.

Affirmed.

Lathrop Morrow, Fox & Moore for appellants.

(1) An assignment of rents alone does not convey the lease under which the note accrues to the assignee, nor indeed does it convey any right, title, or interest in the lease. White v. Kane, 52 Mo.App. 300; Stanley v. Robbins, 36 Vt. 430; Beal v. Car Spring Co., 125 Mass. 157; Watson v. Hunkins, 13 Iowa 547; Taylor on Landlord and Tenant, sec. 447. (2) This being true, Henwood did not hold the lease from Bouton to Weiss & Ridge, and it was not included in those assigned to Latta. Authorities above cited. (3) A lessee, having assigned the lease by and with the consent of the lessor, and the assignee agreeing with the lessor to pay all rents accruing thereafter, the original lessee becomes thereby merely surety for the payment of such rents. Brandt on Suretyship and Guaranty, sec. 1; Wendlandt v. Sohre, 37 Minn. 162; Bank v Woods, 56 Mo.App. 214; Colgrove v. Tallman, 67 N.Y. 95. (4) A creditor, having in his hands the means with which he can satisfy a debt, and being notified by a surety of the principal debtor to make use of such means, discharges the surety if he allows such means to escape. Bank v Woods, 56 Mo.App. 214; Grube v. Stille, 61 Mo. 473; Lichtenhaler v. Thompson, 13 Serg. & R. 157. (5) A clause in a lease binding all property of the lessee for the payment of the rents forms a valid and subsisting lien upon the property of such lessee and is enforcible against such property as against a subsequent mortgage upon the same. Metcalf v. Fosdick, 23 Ohio St. 114; Bank v. Adam, 34 Ill.App. 159. (6) Such lien is good as in favor of an assignee of the lessors and against an assignee of the lessee. McKee v. Angleroot, 16 Mo. 283; Smith v. Brinker, 17 Mo. 148; Will v. Bryden, 52 Mo. 319; Barroilhet v. Battelle, 7 Cal. 454.

Scammon, Crosby & Stubenrauch and John T. Marshall for respondent.

(1) The assignment from Bouton to Henwood of all rentals and other moneys due or to become due under the lease from Weiss & Ridge, and all revenues that may thereafter be derived from the premises, conveys all the rentals thereafter accruing under said lease and the lease itself. A conveyance of all one's right, title, and interest passes a lease, except the reversion. A grant of the reversion passes the rents, unless they be reserved. Rents and reversion make all there is to a lease. Wood, Landlord and Tenant, p. 452; Biddle v. Housman, 23 Mo. 397; Childs v. Clark, 3 Barb. Ch. 452; Taylor, Landlord and Tenant [7 Ed.], secs. 15, 426, 447; Hunt v. Thompson, 2 Allen, 341; Perrin v. Lepper, 34 Mich. 291; Hassler v. Zaller, 24 Mo. 13; Demarest v. Willard, 8 Cowen, 206. (2) The assignment of Henwood to Latta of "all the existing leases now held by me upon said building and improvements, and all my right, title, and interest in and to said leases," was sufficient to convey the rentals and all moneys due or to become due thereafter; otherwise the grant as to the leases and interest in and to the same would be inoperative and unmeaning. Broom's Legal Maxims [6 Am. Ed.], 522; Cobb v. Fountaine, 3 Rand. (Va.) 487; Langston v. Langston, 2 Cl. & F. Rep. 522; Cheney v. Curtois, 13 C. B. N. S. 423; 1 Chitty, Contr. [11 Am. Ed.] pp. 111-117. (3) If the language of the instrument of conveyance from Henwood to Latta is doubtful, then it should be interpreted in the light of the surrounding circumstances, and the evident purpose of the parties and of the construction they gave to it. It was the purpose of it to convey to Latta all Henwood had. After it was made, Latta proceeded to collect the rents and Henwood made no claim to them. Matthews v. Danahy, 26 Mo.App. 660; St. Louis Gaslight Co. v. City, 46 Mo. 121; Sedalia Brewing Co. v. Sedalia Waterworks Co., 34 Mo.App. 49; Ellis v. Harrison, 104 Mo. 270; Long v. Timms, 107 Mo. 512; Patterson v. Camden, 25 Mo. 13; Brice v. Evans, 26 Mo. 30. (4) Where the lessee, as in the case at bar, expressly covenants to pay rent, he is bound by the covenant (and that not as a surety, but as a principal), even though he has assigned his lease with the consent of the lessor, either verbal or written, and that even though the lessor has collected rent from the assignee. Taylor, Landlord and Tenant [7 Ed.], sec. 438; Whetstone v. McCartney, 32 Mo.App. 430; Jones v. Barnes, 45 Mo.App. 590; Chorless v. Froebel, 4 Mo.App. 45; Bailey v. Wells, 8 Wis. 141; Wall v. Hinds, 4 Gray, 256; Wilson v. Gerhardt, 9 Col. 585; Oswald v. Fradenburg, 36 Minn. 270; Bannette v. Treat, 91 Cal. 223; Grommes v. St. Paul Trust Co., 35 N.W. 820. (5) This last proposition is particularly applicable where the assignment itself, as in the case at bar, provides: "It is further agreed that nothing herein contained shall in anywise alter the liability of said Weiss & Ridge on the covenants contained in the lease, and they expressly waive any right to notice of any default or breach of any conditions, covenants, or agreements contained in said lease." Courts do not undertake to make contracts for parties, but permit them to make their own. Webb & Co. v. Ins. Co., 14 Mo. 3; Mitchell Furniture Co. v. Ins. Co., 17 Mo.App. 627; Sexton v. Hull, 45 Mo.App. 339. (6) In the absence of a statutory provision to that end, a surety can not require a creditor to proceed against the principal, and in the event of his failure so to do, be discharged; nor can he require the creditor to proceed in a particular way. The provisions of the Missouri statute do not extend to leases. R. S. 1889, sec. 8343; Brandt on Suretyship, sec. 208; Langdon v. Markle, 48 Mo. 357; Petty v. Douglas, 76 Mo. 70; Conway v. Campbell, 38 Mo.App. 473; Findley v. Hull, 34 Am. Rep. 257; Smith v. Tegler, 47 Am. Rep. 358; Brooks v. Carter, 36 Ala. 682; Ruggles v. Holden, 3 Wend. 216. (7) A landlord can not enforce a lien for rent when no rent is due. There was no rent due here when plaintiff was required to proceed. Sheble v. Curdt, 56 Mo. 437.

OPINION

Brace, P. J.

On the fourth day of October, 1889, one Henwood, then having a lease for ninety-nine years of the property, leased to one Bouton "all of lot numbered sixty-one, in block four, in McGees addition to Kansas City, with the buildings thereon, for the term of five years from the first of January, 1890. Afterward, on the seventh day of October, 1889, Bouton leased to defendants a storeroom in said building for a term of five years from the first of January, 1890, for which the defendants were to pay by the terms of the lease their proportion of the expenses of heating and lighting, etc., and rent as follows: $ 300 per month for the first year, $ 350 per month for the second year, $ 400 per month for the third year, $ 450 per month for the fourth year, and $ 500 per month for the fifth year, installments payable in advance on the first day of each month. By the terms of the lease, it was also provided that the lessees "will not sublet or allow any other tenant to come in with or under them without the written consent of said Bouton, his representatives or assigns; that they will repair all injuries or damages done to the premises by them during their occupancy or pay for the same; that all their property, whether subject to legal exemption or not, shall be bound and subject to the payment of rents and damages thereof."

Defendants went into possession under the lease and paid the rentals as they fell due up to, and including, the installment of March 1, 1891.

On the twenty-sixth of March, 1891, by an agreement in writing of that date, between the defendants, parties of the first part, B. S. King, of the second part, and Bouton, of the third part, duly signed, sealed, and acknowledged by them, the defendants assigned and transferred to said King all their leasehold interest aforesaid; said agreement in writing containing the following provisions:

"Said King hereby covenanting and agreeing, promising and assuming to and with the said Weiss & Ridge, to pay the rent when and as it becomes due, commencing with the first day of April, 1891, and to observe all the stipulations, agreements, and provisions of the said lease and to save the said Weiss & Ridge harmless from any loss or damage by reason of his failure to do so; and the said Bouton does hereby consent to the said transfer of said lease, but not to any further or other transfers, and the said King, in consideration of his consent, does hereby promise and agree to pay the rent reserved in said lease to the said Bouton, his representatives and assigns, and to keep and observe all and singular the conditions, covenants, and agreements in said lease contained.

"It is further agreed that nothing herein contained shall in anywise alter the liability of said Weiss & Ridge on the covenants and agreements contained in said lease and they expressly waive any right to notice of any default or breach of any of the conditions, covenants, or agreements contained in said lease."

King went into possession under this assignment, and thereafter paid the rentals as they fell due to Bouton, until September following.

In the meantime Bouton had leased other portions of the premises to two other parties, and on the eighth of September, 1891, made a conveyance to Henwood, which, after reciting, first the lease from Henwood to Bouton, then the lease to defendant, and then the two leases to the other parties, proceeds as follows:

"Now therefore, in consideration of one (1) dollar to him paid by said Henwood and of other valuable considerations, said Bouton hereby sells, assigns, and transfers to said Henwood all the rentals and other moneys due or to become due under any...