Tomasi v. Kelley
| Citation | 137 A. 196 |
| Parties | TOMASI v. KELLEY. |
| Decision Date | 04 May 1927 |
| Court | United States State Supreme Court of Vermont |
Appeal in Chancery, Rutland County; Frank L. Fish, Chancellor.
Suit in equity by John C. Tomasi against John J. Kelley. From a decree for plaintiff, defendant appeals. Decree affirmed, and cause remanded.
The plaintiff is the defendant in a suit brought to the Rutland county court by this defendant, in which the latter sought to recover in action of general assumpsit for rent of certain premises in Fair Haven, occupied by said Tomasi. The suit at law was restrained in the suit at bar on the ground that this plaintiff has rights in said premises which can be secured only in a court of equity. The plaintiff claims that the defendant is bound by the terms of a certain lease to the plaintiff because the plaintiff was in possession of a part of the premises at the time the defendant took his deed.
On the facts found by the chancellor, decree was rendered for the plaintiff, and the case is in the Supreme Court on defendant's appeal.
Argued before WATSON, C. J., and POWERS, SLACK, and MOULTON, JJ.
Marvelle C. Webber, of Rutland, for appellant.
Dorsey & Kinney and Lawrence, Stafford & Bloomer, all of Rutland, for appellee.
In May, 1923, Augusto Duri. then the owner of the so-called "Root Block" in the village of Fair Haven, by an instrument in writing, signed by him as the party of the first part, and by the plaintiff, John C. Tomasi, as party of the second part, leased to the latter the "southerly half" of said block, for and during the term of five years from August 1, 1923, to July 31, 1928, the specified rental of the premises to be paid by the lessee to the lessor being $67 per month, to be paid monthly. The lease contains also covenants for a renewal lease of said premises, at the option of the lessee, for the further term of five years, to be given by the lessor, his heirs or assigns, at the same yearly rental, etc. The lease was executed in duplicate with all the formalities required by law, except that it contained but one witness to its execution by the lessor, and but one to its execution by the lessee. It was not recorded in the records of the town of Fair Haven until November 8, 1924.
The block in question consisted of two parts, the southern and northern. The southerly half, covered by this lease, consisted of a store and basement then and hitherto occupied by the said lessee, as a fruit store and soda fountain; a second floor then and hitherto occupied by one Wilson as a barber shop; and the third floor then occupied by certain tenants as a clubroom. Ever since the taking of the aforementioned lease by Tomasi, Wilson has occupied the second floor as a barber shop, and one Minogue has occupied the third floor as a clubroom; each being a subtenant under Tomasi.
On October 8, 1924, defendant, Kelley, purchased the whole of said block of Duri; the conveyance thereof being by absolute deed of warranty in which the premises are stated to be "free from every encumbrance," and the grantor therein engaged "to warrant and defend the same against all lawful claims whatever." This deed was duly recorded on the day of its execution.
The defendant, Kelley, at the time he purchased the premises, and for several years prior thereto, knew that Tomasi had occupied and was occupying the store and basement. His visits to the store would average nearly once a week for a period of two or three years prior to this purchase of the block. He also knew that Wilson occupied the second floor of the south part of the block as a barber shop, and he was in the habit of visiting the shop weekly to get his barbering done for a considerable period prior to his purchase of the block. He likewise knew that Minogue was in occupancy of the third floor of the south part of the block. It did not appear that the defendant, Kelley, knew that either Wilson or Minogue was occupying the premises under a sublease from Tomasi. Kelley made no inquiry prior to or at the time of his purchase of the premises, of either Tomasi, Wilson, or Minogue upon what terms and conditions he was occupying the said premises, or part thereof.
On October 30, 1924, Kelley gave notice to Tomasi that beginning December 1, 1924, the rent for his store would be $65 per month, and that his lease would be considered as from month to month.
G. L. 2743, provides:
"A deed of bargain and sale, a mortgage or other conveyance of land, in fee simple or for term of life, or a lease for more than one year from the making thereof, shall not be effectual to hold such lands against any person but the grantor and his heirs, unless the deed or other conveyance is acknowledged and recorded as provided in this chapter."
The defendant urges that, as the plaintiff's lease contained but one witness to the signing by either party thereto, and as it was not recorded until after defendant purchased the Root Block of and took a conveyance thereof from Duri, the lease was not effectual to hold the leasehold as against the defendant; it being found as a fact that he had no actual notice of the lease before or at the time he took his deed of conveyance. In this connection defendant further urges that, under the statute, quoted above, nothing short of actual notice of said lease at the time he took conveyance of the property would make him a mala fide purchaser with notice. In support of this position, our attention is called to a Massachusetts statute of the same general nature, providing that, unless recorded, a lease for more than seven years and a conveyance in fee, etc., shall not be valid as against any person other than the grantor or lessor and his heirs and devisees and persons having "actual notice" of it, and to the holdings of the highest court of that state to the effect that under it "actual notice" is essential to affect a subsequent purchaser for value. Actual notice, however, has never been required by express provision of the statute of this state, nor has such a requirement been deemed essential to its proper construction in the unbroken line of decisions covering a period of well-nigh a century. Where, in such cases, actual notice has not in fact been had, constructive notice has always been held competent in kind and sufficient in law if established. In Rublee v. Mead, 2 Vt. 544, decided in 1830, the principal question was whether the facts in the case, aside from the record of the deed, supplied evidence sufficient to affect...
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