Markey v. Smith
| Decision Date | 01 July 1938 |
| Citation | 301 Mass. 64,16 N.E.2d 20 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | FRED L. MARKEY & others, trustees, & others v. JAMES P. SMITH & others, trustees, & others. |
April 4, 5, 1938.
Present: LUMMUS QUA, DOLAN, & COX, JJ.
Landlord and Tenant, Construction of lease, Termination of lease, Entry for breach of condition, Waiver of breach, Title of landlord. Deed, Condition, Determinable estate. Estoppel. Waiver. Notice.
Statement by Cox J., of rules of construction applicable in determining whether an interest in land is subject to a conditional limitation or to a condition subsequent.
A lease of land at Salisbury Beach requiring the lessee to operate thereon a so called "Old Mill" and stating that it would be "null and void if said lessee shall fail for a period of thirty days during the Beach season . . . of any year to operate said `Old Mill'" and giving the lessor a right of reentry without notice or demand if the lessee failed "to keep and perform any conditions or agreements" therein, in view of all its provisions and the applicable circumstances, was construed to create an estate subject to a condition subsequent.
By accepting a lease of land for a certain term from individuals stated in the lease to be trustees of a voluntary association formed under a recorded declaration of trust, the lessee was estopped to deny the authority of the trustees as lessors during the entire term although by the provisions of the recorded declaration the trust was not to continue so long.
Acceptance by a lessor from the lessee of the amount of a tax assessed upon a building on the leased premises which was stated in the lease to be property of the lessee and was regarded by the parties as not part of the leased premises did not require a finding that the lessor had waived previous breaches by the lessee of other covenants, including a covenant to pay taxes on the land.
An entry upon land by a lessor for breach by the lessee of a condition subsequent under a provision for a right of reentry without notice or demand was not rendered ineffectual by the fact that the lessor gave to a sublessee a notice of reentry specifying as a ground therefor a breach which he had waived the notice, even if the lessor had been bound by its recitals, also stating in general terms that the reentry was under the right to reenter upon failure to perform "any conditions or agreements."
BILL IN EQUITY, filed in the Superior Court on May 10, 1935, and afterwards amended, seeking in substance to have determined rights of the parties respecting a building on the northeast corner of lot 457 referred to in the opinion, the building being variously referred to in certain leases and the pleadings and the opinion as a "restaurant" and a "store" and "restaurant or store" and described in the amended bill as "not permanently affixed thereto, but . . . built on posts and . . . readily removable," title to the building, free of a lease, being claimed by the defendants by reason of breach of condition of the lease and of a reentry after breach.
By order of Donnelly, J., a master's report was confirmed and a final decree entered dismissing the bill and directing the plaintiffs, trustees under the will of Ralph Pratt, to pay the defendants, trustees of the Salisbury Beach Associates,
$4,085 for rent from June 1, 1931, to April 1, 1935, with interest and costs; and the plaintiff, Salisbury Beach Attraction Company, to pay the defendants $4,336.36 for rent with interest and costs. The trustees under the will of Ralph Pratt, the Salisbury Beach Attraction Company, and the trustees of the Salisbury Beach Associates appealed.
J. A. Donovan, (J.
M. Hargedon with him,) for the plaintiffs, trustees under the will of Pratt, and the Salisbury Beach Attraction Company.
E. R. Hale, (G.
Bolton & John J. Sullivan with him,) for the defendants, trustees of the Salisbury Beach Associates.
This is a bill in equity filed on May 10, 1935, by the Salisbury Beach Attraction Company, lessee, the trustees under the will of Ralph Pratt, and the Dodgem Corporation against the trustees of the Salisbury Beach Associates, lessors, seeking to enjoin the latter from interfering with the occupation, or the collection of rents from certain tenants named as defendants of the building which is located on a portion of the leased premises. The plaintiffs' bill, by amendment, in substance seeks to have the ownership of this building determined. The answer of the defendant lessors sets up a counterclaim for rent allegedly due by the terms of the lease. The case was referred to a master whose report was confirmed by an interlocutory decree. All parties except the defendant tenants have appealed from the interlocutory and final decrees.
The master finds that in 1914 the Salisbury Beach Associates, hereinafter referred to as the Associates, a voluntary association under a declaration of trust dated April 25, 1911, and recorded with the Essex south district registry of deeds, leased to the plaintiff Salisbury Beach Attraction Company, a corporation, hereinafter referred to as the Attraction Company, a lot of land at Salisbury Beach described as lot 457 for ten years from May 1, 1914. This lease was cancelled in 1922 by mutual consent, and on May 1, 1922, a new lease was entered into by the same parties, covering the northeastern corner of lot 457 "on which is now located the restaurant building of the lessee, and that portion of the westerly side of said lot 457 on which the `Old Mill' now stands" and several other lots. The new lease contained the following provisions: On June 1, 1922, the Attraction Company leased to Ralph Pratt "that part of lot 457 . . . on which a building used as a restaurant now stands . . . being the northeast corner of said lot . . .," at a rental of $1 a year, for a period of fourteen years. Pratt died in 1924. Trustees under his will joined as parties plaintiff. From May 31 to July 3, 1926, the "Old Mill" was closed with the consent of the Associates and for the purpose of installing a water chute or plunge. On June 6, 1927, the front part of it was demolished to make room for a "Foot-Ball Ride." In May, 1928, the remainder of the "Old Mill" was torn down, the "Foot-Ball Ride" was discontinued, and a "Custer Ride" was installed and operated until September, 1930. These changes and installations were made with the consent and approval of the Associates. Since 1930 the Attraction Company has not operated any attraction on the "Old Mill" site. No rent has been paid by the Attraction Company to the Associates under the lease since 1924. Taxes on the building in question, which is located on the northeast corner of lot 457, were paid to the Associates by Pratt or the trustees under his will, up to and including 1933. This building is described in the lease as "the restaurant building of the Lessee." No other taxes have been paid since 1922. On April 1, 1935, in accordance with a vote of the Associates, an entry was made on the premises and possession taken. Notice of this entry was given to "the Estate of Ralph Pratt" as hereinafter appears. By agreement between the Associates and the trustees under the Pratt will, the rent of the stores in the building in question has been held jointly. There was collected $980 for the year 1934, and $1,375 for 1935. An additional $100 was paid to the Associates in 1935. The plaintiffs' bill relates only to the northeast corner of lot 457, the building which is located thereon and the rent derived therefrom.
The master evidently instructed himself that the clause in the lease of May 1, 1922, from the Associates to the Attraction Company which reads: "and that this lease shall be null and void if said Lessee shall fail for a period of thirty days during the Beach season from May 1st to September 15th of any year to operate said `Old Mill,'" is a conditional limitation, as contended for by the defendants, rather than a condition subsequent as urged by the plaintiffs. The earlier cases laid considerable emphasis on the words used in an instrument of conveyance in determining whether a condition subsequent or a conditional limitation was created. Rawson v. School District in Uxbridge, 7 Allen, 125, 128. Fifty Associates v. Howland, 11 Met. 99. Attorney General v. Merrimack...
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