Tipton v. North

• Decision Date: 31 May 1939
• Docket Number: Case Number: 28466
• Citation: Tipton v. North, 92 P.2d 364, 185 Okla. 365, 1939 OK 278 (Okla. 1939)
• Parties: TIPTON v. NORTH
• Court: Oklahoma Supreme Court

1939 OK 278

92 P.2d 364

185 Okla. 365

TIPTON v. NORTH

Case Number: 28466

Supreme Court of Oklahoma

Decided: May 31, 1939

Syllabus

¶0 LANDLORD AND TENANT--Language of Lease Held to Provide for Perpetual Annual Renewals.

A lease which provides, "It is understood and agreed by and between the parties hereto that the said lessee shall have the option to renew this lease upon the expiration hereof under the same terms and conditions as are hereinabove set forth for an additional year upon giving the sold lessee one month's notice of intention to renew said lease, and said option to renew under the same terms and conditions shall continue in force at the end of each year and the rental agreed to be paid hereunder is consideration for said option of renewal," is clear, unequivocal and unambiguous, and means the lessee shall have the right, on one month's notice, at the end of each year the lease or a renewal thereof is in force, to renew for an additional year under the same terms and conditions as the property was held the previous year.

Appeal from District Court, Seminole County; H. H. Edwards, Judge.

Action in ejectment and to cancel lease, brought by S. N. North against J. V. Tipton.Judgment for plaintiff, and defendant appeals.Reversed, with directions.

Davis & Patterson and Earl A. Davis, for plaintiff in error.

Geo. C. Crump and H. W. Carver, for defendant in error.

CORN, J.

¶1 This is an action instituted in the district court of Seminole county by the defendant in error, S. N. North, against the plaintiff in error, J. V. Tipton, and for the. sake of convenience the parties will be hereafter referred to as plaintiff and defendant, as they appeared in the lower court.

¶2The plaintiff filed petition seeking possession of the property involved in this action, and prayed for the cancellation of the lease contract under which the defendant held possession of the premises.The lease in question is as follows:

"This agreement, made and entered into this 20th day of February, 1933, by and between Ruby Hawkins, lessor, and J. V. Tipton, lessee,

"Witnesseth: For and in consideration of the mutual covenants and agreements hereinafter set forth, the said lessor hereby rents, leases and lets unto the said lessee the following described property, to wit:

"Lots 17 and 18, in Block 23 in the City of Wewoka, Seminole County, Oklahoma;

"To Have and to Hold the above-described premises unto the said lessee, his heirs and assigns, for a period commencing on the date hereof and ending on the 20th day of February, 1934.

"The said lessee hereby covenants and agrees to pay the said lessor as rental on the above described premises the sum of ThirtyFive Dollars ($35.00) per month for the first two months this lease is in force, said sum to be paid Thirty-Five Dollars ($35.00) on the date hereof and Thirty-Five Dollars ($35.00) on the 20th day of March, 1933, and on the 20th day of April, 1933, and on the 20th day of each succeeding month thereafter the said lessee agrees to pay the sum of Fifty Dollars ($50.00) as rental on said premises.

"It is further understood and agreed by and between the parties hereto that any additions or improvements attached to the above premises or placed in or on said premises by the said lessee shall be considered as personal property, and shall remain the property of the said lessee who shall have the right to remove the same from said premises upon the expiration of this lease.

"It is further understood and agreed by and between the parties hereto that in the event the said lessee shall deem it advisable at any time to release his rights under this lease and does in fact execute such release and surrender possession of the above property that the obligation to pay additional rent on said premises shall forthwith be canceled.

"It is further understood and agreed by and between the parties hereto that the said lessee shall have the option to renew this; lease upon the expiration hereof under thesame terms and conditions as are hereinabove set forth for an additional year upon, giving the said lessee one month's notice of' intention to renew said lease, and said option to renew under the same terms and conditions shall continue In force at the end of each year and the rental agreed to be paid hereunder is consideration for said option of renewal. * * *"

¶3 Thereafter plaintiff filed an amendment to his petition alleging that the above contract is in violation of the statute against perpetuities and void.The defendant filed his answer alleging that he occupied the premises in question under the above lease and alleging that all the terms and provisions of said lease with respect to notice of renewals and payment of rent had been complied with and that said lease was in full force and effect and not in violation of the statute against perpetuities.

¶4Plaintiff filed reply to defendant's answer In the form of a general denial to all allegations inconsistent with plaintiff's petition.

¶5 The evidence discloses that on February 20, 1933, Ruby Hawkins, then owner of the premises involved in this action, executed the lease for the cancellation of which this action was brought, to the defendant, and thereafter defendant went into possession of the premises.

¶6 Prior to January 20, 1934, defendant notified his lessor of his intention to exercise the option of renewal contained in the lease, and thereafter defendant continued in possession of the premises and paid the rental provided for in the lease.Prior to January 20, 1935, defendant gave notice of his intention to renew his lease, and said premises were occupied by defendant under said contract for a third year, and said option of renewal was exercised by defendant as provided for in said lease prior to January 20, 1936, and occupancy of said premises was continued for a fourth term of one year and all rentals provided for in the lease were duly paid.

¶7 On March 23, 1936, defendant's lessor, Ruby Hawkins, conveyed the property in question to the plaintiff and authorized the defendant to attorn to the plaintiff.Plaintiff received from the defendant the rentals specified in said contract up to February 20, 1937.The lease under which defendant occupied said premises was properly recorded and defendant was in physical possession of the premises at the time plaintiff took his deed from defendant's lessor.

¶8 On January 18, 1937, defendant served notice on plaintiff of his intention to renew the lease for an additional year.On January 20, 1937, plaintiff notified defendant of his intention to terminate defendant's lease.Thereafter plaintiff refused to accept further rentals and filed this action for the cancellation of said defendant's lease.

¶9 Judgment was rendered on July 6, 1937, canceling the above lease contract, and plaintiff was decreed to be entitled to possession of the premises.

¶10 The findings of fact and conclusions of law made by the court are as follows:

"In this casethe plaintiff sues the defendant, Tipton, and others, alleging that he is the owner of certain property in Wewoka, in the possession of the defendant, Tipton, under a certain lease contract made and entered into the 20th day of February, 1933, by and between the defendant, Tipton, and the then owner of said property, Ruby Hawkins.

"The plaintiff seeks to recover possession of said property and to terminate the alleged lease.

"The evidence discloses that a written agreement was entered into by and between Ruby Hawkins and J. V. Tipton, covering said property, under date of February 20, 1933, for one year.Said lease provides that

"'Said lessee shall have the option to renew this lease upon the expiration hereof under the same terms and conditions as are hereinabove set forth for an additional year upon giving the said lessee one month's notice of intention to renew said lease.'

"And then further provides:

"'Said option to renew under the same terms and conditions shall continue in force at the end of each year and the rental agreed to be paid hereunder is consideration for said option of renewal.'

"The defendant Tipton went into possession of the premises under said lease on the 20th day of February 1933, and at the end of said period gave notice of his intention exercise his option for another year.The second year would expire February 20, 1935, but the defendant Tipton continued in possession and is still in possession, claiming the right to such possession by virtue of said lease.

"Prior to the expiration of the year which would end February 20, 1937, the plaintiff gave notice of his intention to terminate said lease, he having in the meantime and prior thereto become the owner of said property, and the defendant declined to give possession to the plaintiff, contending his right to hold from year to year so long as he saw fit to exercise his so-called option.

"The lease is made binding in the following language:

"'To have and to hold the above-described premises unto the said lessee, his heirs and assigns, for a period commencing on the date hereof and ending on the 20th day of February, 1934.'

"But no provision is made in the lease that binds the successors of the lessor.

"It is the court's interpretation of this contract that as between the original owner of the property and the lessee, the lessee could have enforced a renewal of the lease at the end of the first year and might have been able to enforce the renewal of the second year's lease for another year, but no further than that.To hold that the lessee could force a renewal of this lease as against the owner and her successors in title from year to year for an indefinite period would be to create a perpetuity which the law does not favor, and the court is of the opinion that a renewal of this lease cannot be enforced as against the present Owner for the year beginning February 20, 1937, and that the lease should be canceled and possession of the property decreed to the plaintiff. * * *"

¶11The defendant in his brief states:

"The

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