Wright v. Graves , 80 Ala. 416 ( 1885 )

CLOPTON, J.

The deed, which was executed by W. D. Graves and wife in March, 1883, conveys 'to the plaintiff a fee simple estate to commence in prmsenti. The parol reservation of a life estate, whether prior to, or cotemporaneous with the execution of the absolute conveyance, was merged in it, and the deed took effect as an operative conveyance according to its terms from the time of its delivery. Its legal effect can not be varied or qualified by a reservation in parol, so as to make the estate conveyed commence in fivturo. On the execution of the conveyance, the plaintiff was entitled to immediate possession, without condition or reservation. — • Williams v. Higgins, 69 Ala. 517. Such are the effect and operation of the deed, and it is not competent to limit the wprds of grant, or postpone the enjoyment of the estate vested, by evidence resting in parol.

A parol gift of lands, or an unexecuted parol contract of purchase, creates a tenancy at will. Collins v. Johnson, 57 Ala. 304; Jackson v. Rogers, 2 John. Cas. 33; Jones v. Jones, 2 Rich. (S. C.) 542. Whei-e the remainderman resided on lands, under a verbal agreement, that he and the life tenant should live together, and cultivate and carry on the farm, it was held, that the remainderman was a tenant at will. — Leavitt v. Leavitt, 47 N. H. 329. A tenancy at will may generally be regarded as created by implication of law, where a person, without a freehold interest or a definite term, enters into the possession of lands with the assent of the owner, and remains in possession by his permission and at his will, under circumstances, which do not create a tenancy, by sufferance, or from year to year. The parol reservation of a life estate by W. D. Graves, being revocable, and subject to disaffirmance by the plaintiff, constituted him a tenant at will, so long as- he continued in possession.

If the defendant had been let into possession, under the lease, b}r the tenant at will, he would have become a sub-lessee, and would have been precluded to deny the right or title of his lessor at the time of making the lease. But in Grim, v. JSTeems, [present term], we held, if the tenant was not let into possession, he was not estopped from showing, that the contract of lease is invalid, because unsupported by a sufficient legal consideration. ■ The contract of lease was made in September, 1883. In November or December, thereafter, the defendant declined to carry, out the contract, and to take possession of the leased premises, which were a part of the lands conveyed by the deed to plaintiff; and was never let into possession. Ordinarily, a tenancy at will is not assignable, and making a lease terminates it. The owner may elect to treat the lease as a termination of the tenancy, or to permit the lessee to enter and remain in possession, thus constituting him a tenant at will; but it is a new tenancy, to the creation of which possession is requisite Cook v. Cook, 28 Ala. 660; Reckhow v. Schanck, 43 N. Y. 448. At the time of the making of the lease, the lessor, being himself a tenant at will, had no interest or estate in the lands, which he was capable of conveying, or out of which to create any estate or right in the defendant, available against the plaintiff. Had he entered into possession under it, he would have a disseizor, unless the plaintiff elected otherwise. “ Rent being an equivalent for an interest enjoyed, a covenant for its payment can not be enforced, if no estate passed under the lease, and the tenant has not occupied the premises; since there is no legal consideration for the engagement.” — Tay.’L. & T., § 384.

But it is urged, that inasmuch as the lessor of the defendant was permitted by the plaintiff to receive the rents and profits of the lands during his life, and the parol reservation executed, the l-ights of the plaintiff should be considered the same, as if the reservation of a life estate had been valid in its origin. While it seems, that the liability of defendant should depend on the status, condition and rights of the parties at the time the agreement to lease was made, there having been neither a full nor part performance ; if it were conceded, that the reservation must be regarded as valid from its inception, and as operative to carve out a life estate, the title of the plaintiff to a recovery on the covenant of lease would not follow. A tenant for life can not make a lease to continue longer than his own estate, unless the remainderman joins. If the lessee of the tenant for life is in possession at the time of his death,'and continues to hold over, he becomes a tenant by sufferance. By acceptance of rent from him, or by other conduct, the remainderman may recognize him as a tenant from year to year; but if the lessee is not in possession, or does not hold over, a mere recognition of the validity of a lease previously made does not constitute a tenancy by sufferance or other tenancy. — Tay. L. & T., § 113. The defendant never having occupied, the leased premises owed no fealty to the plaintiff. There is no evidence that the defendant ever acknowledged the title of the plaintiff, or held in subordination to it, or ever recognized the existence of the relation of landlord and tenant between them. There is no privity of contract, and the death of the tenant for life does not operate an assignment of the covenants of lease. Ilis personal representatives may be entitled to recover the rent due by the contract up to the time of his death ; but the right of the plaintiff as remainderman does not arise, or spring from the lease made by the tenant for life; but from a continued occupation by the lessee. — Austin v. Thompson, 45 N. Y. 114. Neither is the plaintiff authorized to maintain the suit as on covenants running with the land, since he is not assignee of the lessor, or if assignee, did not become so until the lease had been terminated by the death of the lessor. — Andrews v. Pearce, 1 N. R. 158; Williams v. Burrell, 1 C. B. 402. From the facts stated in the bill of exceptions, it can not be affirmed as matter of law, if a valid reservation of a life estate be conceded, that the defendant was tenant of the plaintiff, or that the plaintiff has a right to maintain an action in his own name on the covenants of lease.

Moreover, if it were conceded that there was a valid reservation of the life estate, and the right of the plaintiff to sue on the contract upon the termination of the life estate was also conceded, the reservation, as shown by the evidence, was for the grantor and his wife. The death of the wife is not shown, and hence it does not appear that the particular estate has fallen in.

The court erred in the ruling on the answer to the complaint, and in the charge given.

Reversed and remanded.