Michael v. Mitchell

• Decision Date: 06 June 1947
• Docket Number: 17555.
• Citation: 73 N.E.2d 363,118 Ind.App. 18
• Parties: MICHAEL v. MITCHELL.
• Court: Indiana Appellate Court

73 N.E.2d 363

118 Ind.App. 18

MICHAEL v. MITCHELL.

No. 17555.

Appellate Court of Indiana, in Banc.

June 6, 1947

Appeal from Marion Municipal Court No. 2; Harry P. Champ Judge.

Symmes, Fleming & Symmes and Owen S. Boling all of Indianapolis, for appellant.

Frank W. Morton and Wesley T. Wilson, both of Indianapolis, for appellee.

DRAPER Judge.

The appellee brought this action against the appellant to recover the immediate possession of a building in Indianapolis, and for damages. This appeal is prosecuted from a verdict awarding appellee possession, and damages in the sum of $500.

The appellee filed her complaint in three paragraphs which are alike except as to the breaches of lease relied upon. The complaint discloses the following facts:

Sometime prior to April 15, 1943, a Mrs. Watson, the then owner leased the property to appellant for a term of three years from that date with option for an additional two years. The lease required the appellant to pay a rental of $50 per month in advance on the 15th day of each month, and as an additional consideration for the lease and option, to install on or before September 1, 1943, at his own expense, a heating plant and water heater which were to remain in and become a part of the premises, and to paint the exterior of the property, at his own expense, on or before September 1, 1944.

The lease provided for forfeiture for the violation of any stipulation therein contained; waived demand for rent or for possession in event of forfeiture; and entitled the lessor to rent whether before or after forfeiture.

The appellant never installed the heating plant and never painted the property. On July 19, 1945, Mrs. Watson conveyed the property, by warranty deed, to the appellee. No assignment of the lease or of any kind was made by Mrs. Watson to appellee, but the conveyance was made 'subject' to the lease. On August 1, 1945, the appellant was notified that appellee had bought the property on July 19, 1945; that his lease was forfeited and void due to his failure to paint as agreed; and he was notified to vacate the premises. The rent due on the 15th day of September, October and November, 1945, was not paid on or before the due date and is now past due and unpaid.

The first paragraph of the complaint, which was filed on November 19, 1945, is based on appellant's failure to install the heater; the second, his failure to paint; the third, his failure to pay rent due on the 15th of September, October, and November, 1945. Under each paragraph he sought to recover possession of the property and damages. Appellant's demurrer to the complaint for want of facts sufficient was overruled, and issues were closed by answer and reply.

Appellant predicates error in the overruling of his demurrer to the first two paragraphs of complaint on the proposition that appellee is not the real party in interest; that where a covenant to make repairs clearly specifies the time for their making, there is an obligation to make them within such time; the lessor's right of action then accrues; and the transferee of the reversion cannot recover for breaches to repair committed prior to the transfer.

With exceptions not here important, an action must be prosecuted in the name of the real party in interest. Burns' 1946 Repl. § 2-201.

In the instant case the breaches occurred when the appellant failed to perform within the time agreed upon, Island Coal Co. v. Combs, 1899, 152 Ind. 379, 53 N.E. 452, which in both instances expired before the appellee acquired title to the property. The cases generally hold that the transferee of the reversion cannot recover upon breaches of covenants committed prior to the transfer, since the right of action thereon belongs to the owner of the reversion at the time of the breach. Junction R. Co. v. Sayers et al., 1867, 28 Ind. 318; 32 Am.Jur. § 100, p. 107, § 798, p. 681; Bailey v. Meade, 1924, 250 Mass. 46, 144 N.E. 110, 34 A.L.R. 779, anno. p. 782, 801; Tiffany, Landlord & Tenant, § 149(9); Tiffany, Real Property, 3rd Ed., § 131.

The Indiana case just cited was one wherein the complaint alleged that in 1853 a railroad company, in consideration of a license to change the course of a stream, agreed with the then owner of the land, who had on said property certain mills which were fed by said stream, to dig a new channel and construct a certain levee sufficient to protect the buildings from damage by water. The plaintiffs in that action purchased the land and mills in 1855, and in 1865 the levee was swept away by high water and the buildings damaged because the company had failed to construct the channel and levee in the manner agreed upon. The agreement to do the work in the manner agreed upon was breached before the plaintiff acquired title, and our Supreme Court, in holding the demurrer to the complaint should have been sustained, said the subsequent sale of the land to the plaintiffs transferred to them no right of action for the violation of the agreement. It is true that case was not an action between landlord and tenant, but it was, like this, an action for damages growing out of a breach committed prior to transfer to a new owner.

At common law, the transferee of the reversion could not enforce a forfeiture of the term under a power of re-entry for breach of the lessee's covenant contained in the lease. Because of the adoption as in force of the statute, 32 Hen.VIII, ch 34, or because of similar statutory provisions enlarging the rights of the transferee he can, in most jurisdictions, now enforce a forfeiture of the term under power of reentry for breach of the lessee's covenant in the lease where the cause of forfeiture arises subsequent to the...