Aveline v. Ridenbaugh , 2 Idaho 168 ( 1886 )

BUCK, J.

On the sixth day of November, 1885, the defendant, Eidenbaugh, leased to one Sing Lee Tong certain real estate, by an indenture in writing, for the term of one year. Upon said premises said Lee Tong had at the time said lease was executed and delivered, and for some time prior thereto had had thereon, about two thousand cords of wood, placed there with the consent of defendant.

The lease contained two covenants of importance in this action, as follows: “1. And the said party of the second part hereby promises and agrees that he will not let or sublet the whole or any part of said premises without the written consent of the party of the first part; 2. It is hereby agreed that if default shall be made in any of the covenants herein contained, it shall be lawful for the party of the first part to re-enter said premises and to remove all persons therefrom.” The premises described in the lease are entirely surrounded by other land of the defendant, the lessor, and the only means of ingress and egress thereto and therefrom is by a way which has been used as a public way to said premises for several years.

On the seventh day of November, 1885, the day succeeding that upon which the lease was executed, the lessee, Lee Tong, sold to these plaintiffs all of the wood upon said premises, “and by the terms of said sale gave them until the expiration of said lease to remove said wood from said leased premises.” Soon after said sale defendant forbade the use of said premises to plaintiffs, and prohibited them from passing over said way for the purpose of removing said wood, and on the ninth day of November entirely obstructed said way and fenced the same; and, although the privilege of passing upon said road to said premises has been demanded by plaintiffs of defendant for the purpose of removing said wood, the defendant continues to obstruct the same, and prevents plaintiffs from removing said wood from said premises.

On the twelfth day of November, 1885, the plaintiffs commenced this action, setting forth the above state of facts in their complaint, and pray relief: 1. That defendant be restrained from obstructing said road leading to said premises for one year from November 1, 1885; 2. That defendant be required to remove all obstructions to the free use and passage of said road; 3. For other proper relief, and their costs.

To this complaint the defendant interposed a general demurrer. ■ The demurrer being overruled, and judgment entered for plaintiffs the defendant appeals therefrom, and urges as error the ruling of the court in overruling the demurrer.

There are two questions involved in the appeal, and argued thereon, to wit: 1. Does the complaint show equity on the part of plaintiffs; and, 2. Is there no plain, speedy, and adequate remedy at law available to plaintiffs ?

It is a fundamental principle of equity jurisprudence that both of these conditions must exist before equity can be successfully invoked in behalf of a litigant. A party may have a cause of action founded upon the present principles of equity, but if the law affords him adequate relief, equity will not interfere. So, on the other hand, the law may be entirely inadequate to his case, yet, if his cause is lacking in equity, he must abide the remedy which the law affords him. (1 Pomeroy’s Equity Jurisprudence, see. 400; Fackler v. Ford, 24 How. 322.)

The plaintiffs knew the tenure by which Lee Tong held the premises. They had full knowledge of the lease, and the covenants that they should not be sublet, and that in case of a breach of any of the covenants the lessor might re-enter and remove all persons therefrom. Notwithstanding this knowledge, the plaintiffs purchase, with the wood, the use of the premises for one year from November 1, 1885, for the purpose of removing the wood therefrom, and of storing the same thereon. This was clearly a subletting of the premises, against the express provision of the lease. Under the covenant to re-enter, within a day or two thereafter, the defendant, the lessor, took possession of the premises, forbade the plaintiffs to enter, and closed up the road thereto. We are unable to see that the plaintiffs are in a position to claim the interposition of equity in their behalf. To grant a restraining order prohibiting the lessor from controlling the premises after condition broken would be to hold that the lessor may not insist on such covenants as seem to him proper. Such a decision would be contrary to the established doctrines. (2 High on Injunctions, sec. 1142; Steward v. Winters, 4 Sand. 587; His Imperial Majesty etc. v. Providence Tool Co., 21 Blatchf. 437, 23 Fed. 572; Root v. Railway Co., 105 U. S. 189; Grand Chute v. Winegar, 15 Wall. 373.) It seems but a suit in replevin in disguise.

It is claimed that Lee Tong did not sublet the premises; that he simply authorized the plaintiffs to remove the wood therefrom at any time within the year. It is alleged in the complaint that plaintiffs are wood merchants. This being so, the peculiar terms of the sale, if they mean anything, mean that the plaintiffs may store this wood upon defendant’s premises during the year, and may at any and all times enter thereon to remove the same, cord by cord, or in larger quantities, as their business may require. This makes the premises of defendant the storehouse for plaintiffs’ stock in trade. Bjr the terms of this contract the plaintiffs are given dominion of defendant’s premises for a year from November 1, 1885, for the purpose of their business. This is clearly a subletting, and a breach of the covenants of the lease. The fact that the plaintiffs had full knowledge of the lease and its* contents leaves them without excuse. The fact that the lessee, Lee Tong, held the premises under the lease but one day and then transferred them, or the use of them, to plaintiffs, contrary to the express covenants in the lease, with a full knowledge of aE the facts, suggests that the plaintiffs were endeavoring to obtain by indirection the use of the premises, when they knew that they could not do so directly from the defendant himself. Even had Lee Tong held the premises as a tenant at will, as he seems to have held prior to the execution of the lease, with the implied consent of defendant to remove the wood within a reasonable time after his tenancy had been terminated, he could not transfer that consent to another. The mere act of letting to a stranger would terminate his tenancy at will. (Taylor on Landlord and Tenant, see. 112.) “If he sells or transfers his tenancy to another, he puts an end to the tenancy.” “His relation to his landlord is entirely of a personal character, and he has no interest which he can transfer to another.” (Taylor on Landlord and Tenant, sec. 62.)

In the case at bar the written lease was a merger of all former contracts, whether as tenants at will or otherwise. We think the plaintiffs are bound to take notice of the title of any under whom they claim to exercise dominion over the premises. Under this view of the case it is unnecessary to consider whether plaintiffs had a remedy at law. We think that the complaint shows no equity, and that the demurrer should have been sustained.

Judgment reversed, and cause remanded for further proceedings in accordance herewith.

Hays, C. J., concurring.