Mead v. Owen

• Decision Date: 03 September 1907
• Citation: 80 Vt. 273,67 A. 722
• Parties: MEAD v. OWEN.
• Court: Vermont Supreme Court

67 A. 722

80 Vt. 273

MEAD

v. OWEN.

Supreme Court of Vermont. Addison.

Sept. 3, 1907.

Exceptions from Addison County Court; Willard W. Miles, Judge.

Action by Cynthia S. Mead, administratrix, against Fred A. Owen. Judgment for plaintiff, and defendant excepts. Reversed and remanded.

Davis & Russell, for plaintiff. H. S. Peck and F. L. Fish, for defendant.

TYLER, J. The plaintiff brought this suit under V. S. 1560, to recover possession of a certain dwelling house situated upon her farm, claiming that the defendant was holding over after the termination of a lease from her. The section of the statute relied upon reads: "When the lessee of lands or tenements, whether the lease is by writing or parol, or when a person holding under such lease, holds possession of said demised premises without right, after the determination of the lease by its own limitation, or after breach of a stipulation contained in the lease by the lessee or a person holding under him, the person entitled to the possession of the premises may have from a justice a writ to restore him to the possession thereof." The defendant contends that the relation of landlord and tenant did not exist between the plaintiff and himself, and therefore that the case does not fall within the terms of this, section.

It appeared that the plaintiff, as administratrix of her deceased husband's estate, resided upon a farm in Addison county belonging to the estate, and that prior to March, 1902, she made an oral agreement with the defendant by which he was to occupy, free of rent or expense, one of the tenement houses situated on the farm and carry on the farm for a term of years, while the plaintiff was to continue to live in the farmhouse and use a portion of the horse barn. "His occupancy of the tenement house was a part of the agreement under which he occupied to carry on the whole farm." He was to have "the exclusive possession of the tenement house," and "neither party was to interfere with the other in the exercise of such possession by each." Each party was to furnish certain things for the farm, and each was to have a sufficient amount of the produce for family use without accounting for it. It was a dairy farm, and it was agreed by the parties that the milk should be carried to a creamery and the checks received therefor divided between them. The defendant was to sell everything that was produced and divide the profits with the plaintiff every month, and by "profits" it was meant that all the expenses incident to running the farm were to be deducted from the income and the remainder be divided monthly. The plaintiff guaranteed the defendant $35 a month above his expenses, and claimed that the agreement was for only two years from March 4, 1902. The defendant claimed that the agreement was that he should carry on the farm upon shares or at the halves until Mrs. Mead's daughter, then 13, should become of full age; that he was to have half the crops and half the income "in the usual way of figuring at the halves"; and that he and the plaintiff were to make partial settlements from time to time. The defendant moved into the tenement house in March, 1902, and began work under the contract.

It appeared that the parties made several settlements and divided the net income; that in the second year some differences arose which they agreed to arbitrate; that on February 28, 1904, they chose arbitrators, who commenced their hearing one or two days afterwards, in the house now in suit, and had nearly completed it, when, on March 6th, the plaintiff revoked the agreement to arbitrate and on the following day brought this suit, without previous notice to the defendant to vacate the premises. The defendant was then living in the house in question, taking care of the stock and produce, with the knowledge of Mrs. Mead and her agent. He then owned a half interest in the stock and produce, and claimed a large balance his due on settlement. The parties did not differ essentially in their respective versions of the agreement; for there is no legal distinction between dividing the products, each party selling his half, and one party selling the whole and dividing the money between them.

1. Under the decisions of this court the plaintiff and defendant were tenants in common of the products of the farm. Aiken v. Smith, 21 Vt. 172; Frost v. Kellogg, 23 Vt. 308; Willmarth v. Pratt, 56 Vt. 474; Willard v. Wing, 70 Vt. 123, 39 Atl. 632, 67 Am. St. Rep. 657. This doctrine is recognized in the recent cases of Sowles v. Martin et al., 76 Vt. 180, 56 Atl. 979, and Hunt v. Rublee, 76 Vt. 448, 58 Atl. 728. But this is not determinative of the legal quality of the defend ant's occupancy of the house; for, though he carried on the farm and occupied the house under one agreement, he had the "exclusive possession" of the house, which precludes the idea of a tenancy in common.

2. The important question in the case is whether the relation of landlord and tenant existed between the parties, or whether the defendant's occupancy of the tenement house was not, under the contract, a mere incident to his carrying on the farm. If it was the latter, this action will not lie; for this court has uniformly held it essential to the maintenance of this form of action that the relation of landlord and tenant must exist, and that this remedy can only be resorted to when the tenant holds possession of the premises after his right to occupy has terminated. Pitkin v. Burch, 48 Vt. 521; Baldwin v. Skeels, 51 Vt. 121; Barnes v. Tenney, 52 Vt. 557; Horan v. Thomas, 60 Vt. 325, 13 Atl. 567. The questions involved require a consideration of the authorities upon the subject of incidental occupancy.

In Hughes v. Overseers of Chatham, 5 M. & G. 54, the question was whether a master ropemaker occupied a certain house in the royal dockyard as tenant or as a servant of his employer, as affecting poor rates and his right to vote. The house belonged to the lords of the admiralty. Hughes paid no rent for the house, but occupied it as a part remuneration for his services. If he had not had the house, he would have had an allowance for a house in addition to his salary. Tindal, C. J., held that a master might pay his servant by conferring on him an interest in real property, either in fee, for years, at will, or for any other estate or interest; but that a servant might occupy a tenement of his master, not by way of payment for his services, but for the purpose of performing them; "that he might not be permitted to occupy, as a reward, in the performance of his master's contract to pay him, but required to occupy in the performance of his contract to serve his master;" * * * that "as there was nothing in the facts stated to show that the claimant was required to occupy the house for the performance of his services, or did occupy it in order to their performance, or that it was conducive to that purpose more than any house which he might have paid for in any other way than by his services, and as the case expressly finds that he had the house as part remuneration for his services, we cannot say that the conclusion arrived at by the revising barrister is wrong." The revising barrister had found that the plaintiff occupied the house as tenant.

A distinction is thus clearly drawn between the occupancy of a house as an incident of the occupant's employment, it being immaterial to him whether he occupy that house or another at the employer's expense, and an occupancy that is for the employer's benefit. Of the former class is where a man is employed in a public office and is allowed to live in a house upon the premises belonging to the government. It is not considered the dwelling house of the occupant. The same is true where the occupier is a servant of a public company. See cases cited in plaintiff's brief in Hughes v. Overseers. The same rule was applied in Chatard, Bishop, v. O'Donovan, 80 Ind. 20, 41 Am. Rep. 782, where a priest, holding his place at the will of the bishop of the diocese, occupied the church property, including a dwelling house. As his occupancy was connected with the service and was required for the better performance of it, it was therefore held to be that of a servant and not that of a tenant.

A nobleman, for instance, would have, attached to his manor, a coachman's house and a gardener's house. His coachman and gardener would be expected to occupy their respective houses for his convenience and on account of their location with reference to the work to be performed. As Lord Mansfield said in King v. Stock, 2 Taunt. 340: "Many servants have houses given them to live in, as porters at park gates. If...