Wilson v. Lunt

• Decision Date: 14 February 1898
• Citation: 52 P. 296,11 Colo.App. 56
• Parties: WILSON v. LUNT.
• Court: Colorado Court of Appeals

52 P. 296

11 Colo.App. 56

WILSON v. LUNT.

Court of Appeals of Colorado

February 14, 1898

Appeal from district court, Arapahoe county.

Action by Andrew D. Wilson against Horace G. Lunt for rent. Defendant obtained judgment on demurrer, and plaintiff appeals. Reversed.

Oscar Reuter, for appellant.

A.M Stevenson and Horace H. Lunt, for appellee.

BISSELL J.

This appeal presents a question which would be one of great difficulty but for the decisions of the supreme court, which to our mind practically resolve it. In 1887 Wilson was the owner of some property on the corner of Broadway and Colfax avenue. In February he leased the premises to one Timerman for 25 years, with the privilege of various renewals at the end of a term of 5 years. The rent reserved for the first five years was $100 a month, and at the expiration of that subdivision of the term, and for every subsequent period of five years, an appraisement and a valuation was to be had, whereon the subsequent rent should be based. On the 3d of May, 1888, Timerman assigned this lease to the appellee, Lunt, by a written transfer in these terms: "Know all men hereby, that for and in consideration of the matters hereinafter mentioned and the sum of seven hundred and fifty dollars, to me in hand paid by Horace G. Lunt, of El Paso county, Colorado, the receipt whereof is hereby confessed, I do hereby assign, sell, and transfer unto the said Horace G. Lunt the annexed lease, and all my right, title, and interest in and to the leased premises, and do hereby grant, bargain, sell, and convey unto him, the said Horace G. Lunt, all my right, title, and interest in and to the said lots, pieces, and parcels of land in the within lease mentioned; the said Horace G. Lunt, in consideration hereof, to pay the owner of said property the rent reserved to be paid under and by virtue of said lease for and during the full term thereof, and to do and perform all things required to be done by me by the terms of said lease, and to save and keep me harmless of and from any loss liability, or damage on account thereof. Signed, sealed, and delivered at Denver, Colorado, this 29th day of December A.D.1889. George W. Timerman. [ Seal.]" The general provisions, limitations, conditions, and reservations in the lease are now unimportant, whatever may be their consequence and significance in subsequent stages of the litigation. On the 15th of June, 1888, the term was transferred by a naked assignment from Lunt to the tramway company, and was assigned by it to its successor, and by the successor to the Denver Auditorium Company in January, 1892. All the assignments subsequent to the one made by Timerman were naked transfers without covenants or agreements. On February 7, 1892, the property was in possession of the Auditorium Company, between whom and Wilson there was an attempt to comply with the terms of the original demise. The complaint alleges that the rent was fixed by the agreement of these parties, the then holder and lessor, for the ensuing five years, at $600 a month. What may have been done by them, and whether they strictly and exactly complied with the terms of the lease whereby Lunt would be bound, is probably sufficiently alleged, though, since the judgment was entered on demurrer, the exact facts do not appear. Wilson brought an action against Lunt to recover the rent reserved. Lunt demurred, and had judgment, and Wilson prosecutes this appeal.

The precedents generally predicate the right of the lessor to bring an action at law against the assignee of a term on the privity of estate which arises when the assignment is executed and the assignee enters. Following this principle to its legal conclusion, it is held that the assignee by a deed poll may avoid any liability for the rent by an assignment to another, though the transfer be made to an irresponsible party, and for the express purpose of freeing himself from the obligation. Nor has it always been held necessary for the assignee to show that he has been devested of the paper title, but it is enough that he was not in possession during the time for which the rent is claimed. Tayl.Landl. & Ten. § 452. This indicates that the gravamen of the suit is in reality the use and occupation, though the privity, which is the legal result of the assignment, must exist to sustain the action. This is because there is no contractual relation between the lessor and the assignee, and use alone has not usually been held enough to permit the lessor to sue. Just why it was not adjudged that a contract might be implied from the use, and that this would allow the lessor to sue in assumpsit, is not plain, without a careful examination of the distinctions which existed at the common law, and the forms of action which prevailed under that system. To the modern lawyer, except as the profession is bound by precedent, which is undoubtedly a salutary principle in many ways, as it tends to the stability of the law, the reasons assigned in the cases which hold that there must be a privity of estate to maintain the action are a little unsatisfactory. In this case, however, we are not compelled to insist on its modification; but we have indulged in the reflection in order to bring out more prominently the idea that in truth it is the use which gives the lessor the right to sue, and not the privity in estate. The privity is only requisite because the parties did not contract, and formerly assumpsit could not be brought unless the parties sustained this relation. As we look at the pleading, it is based on facts which avoid the necessity to apply the rule in all its strictness. It will be remembered that this was not a naked transfer by a deed poll, without promises and assumptions, but was like the grant of an estate from A. to B., executed only by the grantor, but...