Thaw v. Gaffnet

• Decision Date: 08 December 1914
• Citation: Thaw v. Gaffnet, 83 S.E. 983, 75 W.Va. 229 (W. Va. 1914)
• Court: West Virginia Supreme Court
• Parties: THAW et al. v. GAFFNET.

83 S.E. 983

75 W.Va. 229

THAW et al.

v.GAFFNET.

Supreme Court of Appeals of West Virginia.

Dec. 8, 1914.

Rehearing Denied Jan. 12, 1915.

(Syllabus by the Court.)

1.Landlord and Tenant (§ 86^*) — Construction of Lease.

A lease under seal, containing the following covenant by the lessor: "The said parties of the second part are to have said land for the purpose of building thereon two dwelling houses, and to have and to hold said land for and during the term of five years, or as much longer thereafter as the parties of the second part may elect to pay the parties of the first part the sum of fifty dollars ($50.00) per annum, to be paid semiannually in advance"—gives the lessee or his assignee the option to perpetuate the lease indefinitely by paying the stipulated annual rental in advance.

[Ed. Note.—For other cases, seeLandlord and Tenant, Cent. Dig. §§ 270-275;Dec. Dig. § 86.*]

2.Perpetuities (§ 4*)—Leases—Indefinite Renewal.

Such covenant does not violate the rule against perpetuities.

[Ed. Note.—For other cases, seePerpetuities, Cent. Dig. §§ 4-44;Dec. Dig. § 4.*] Error to Circuit Court, Tyler County.

Action by Cora Thaw and others against P. H. Gaffney.Judgment for plaintiffs, and defendant brings error.Reversed, and judgment rendered.

McCoy & Swiger, of Sistersville, for plaintiff in error.

William Beard, of Parkersburg, for defendants in error.

WILLIAMS, J. Judgment for plaintiff in an action of unlawful detainer, and defendant brings error.

The action was originally brought before a justice of the peace, and from his judgment, rendered in favor of defendant, plaintiff appealed to the circuit court.The case was there tried by the court in lieu of a jury upon an agreed statement of facts, from which it appears that on the 14th of November,.1892, Eliza Williamson, owner of a life estate, and Cora L. Dils, owner of the remainder in fee, of a lot of ground in Sistersville, 90x115 feet, by writing under seal, leased it to J. W. and P. H. Gaffney for a period of five years, and as long thereafter as the lessees might elect to pay a rental of $50 a year semiannually in advance.The parts of the lease that are necessary to be considered in deciding the case are as follows:

"The said parties of the second part (lessees) are to have said land for the purpose of building thereon two dwelling houses and to have and to hold said land for and during the term of five years, or as much longer thereafter as the parties of the second part may elect to pay the parties of the first part the sum of fifty dollars ($50.00) per annum, to be paid semiannually in advance.It is further agreed that the parties of the second part shall have the right at any time to sell or remove buildings placed on said premises.All the conditions between the parties hereto shall extend to their heirs, executors, and assigns."

The writing was signed and sealed by both lessors and lessees.The lessees entered and each built a dwelling house on the land, together worth from $2,500 to $4,000.J. W. Gaffney sold and assigned his interest in the lease to Mike Sexton, who occupies one of the houses.The rent has been paid semiannually in advance up until the 14th of November, 1909, when a tender of a half year's rent was made and refused.Plaintiffs then offered to make a new lease in consideration of $100 annual rental, which defendant declined, and hence this action.Mrs. Williamson died, and, later, Cora Dils also died, leaving as her heirs at law the plaintiffs, Cora, Theresa, Ruby, and Robert F. Thaw.On the 8th of April, 1910, plaintiffs gave defendant written notice to quit the premises on the 14th of November, 1910.

The terms of the lease are unambiguous and express the agreement of the parties, and according to their contract their rights 1 must be determined, unless it contravenes some positive rule of law.The question presented for our decision is: Did the lessees have the right to extend the lease for an in definite period after the five-year term had ended, by paying the stipulated yearly rental semiannually in advance; or was that provision which expressly gave them the right thus to extend it voidable at the election of lessors?It is argued by counsel for defendants in error that the right to terminate is mutual, and cannot exist exclusively in favor of one party to a lease.It is claimed that the lessee's right to terminate the lease at the end of any year, by electing not to pay the rent for another in advance, gives the lessor equal right to terminate it.But that principle is applicable to estates at will, and to apply it here would defeat the contract, for the lessors expressly covenanted that the lessees might have the land as much longer than five years as they should elect to pay a rental of $50 yearly in advance.It was clearly the purpose to make the continuation of the lease, after the definite term had ended, optional with the lessees.The landlord's covenant to renew the lease at the end of the term, at the election of the lessee, is a binding obligation.1 Taylor on Landlord and Tenant(9th Ed.) §§ 334, 335.The consideration for the five-year lease is not expressed in the contract, but being under seal the lease imports a valuable consideration, which is not only sufficient to support the lease for the term of years, but is also a consideration for the privilege of extending the lease thereafter from year to year.The lessees are expressly given the option to perpetuate the lease.Such covenants by the landlord are held valid in England under the common law.Hare v. Burges, 4 K. & J. 45, 70 Eng. Rep. 19;Copper Mining Co. v. Beach, 13 Bear. 478, 51 Eng. Rep. 184;City of London v. Mitford, 14 Ves. Jr. 41, 33 Eng. Rep. 471.Perpetual leases are also generally recognized as valid by the courts of this country.There is nothing in the policy of our law which forbids them.In fact, our...