Bragg v. Dole , 1882 Me. LEXIS 20 ( 1882 )

Virgin, J.

When were the defendants obliged to accept a deed of the premises leased to them, or pay the liquidated damages stipulated for their refusal ?

Their covenant answers : "At the expiration of said term, or so soon as the lessor shall acquire an absolute title to said premises and be able to convey the same,” — thus fixing upon one intended to be specific and certain, and another, different and uncertain, but both really contingent upon the redemption of the mortgage under which alone the lessor held.

When was the "expiration of the term?”

Shephard’s ninth rule "to be universally observed for exposition of all kinds of deeds and of all parts thereof,” requires, "that the construction be made upon the entire deed, and that one part of it doth help to expound another, and that every word (if it may be) may take effect and none be rejected.” Law Com. Assur. c. 3, § 2. This rule variously expressed has been universally recognized.

Applying the rule and seeking for the intention of the parties exclusively within the language adopted by them in their deed, "e* antecedentibus et consequentibus,” we find the recital that the lessor’s title is that of mortgagee. The term of the lease is therein expressly limited to the period of " three years from May 9,1877, subject only to the legal right of redemption from said mortgage by any one having the right to redeem.” This modification evidently rendered the "term” potentially less, but not more than the number of years specified. In harmony with this the next succeeding clause limits the time for paying rent to " so long as said term shall last, or until the premises shall be redeemed.” And after providing for a purchase of the premises by the lessees, the parties add another limitation and modification of the time during which rent shall be paid, to wit, that "the rent above stated shall cease at time of purchase,” — both obviously predicated, in the minds of the parties, of a time not exceeding at most three years mentioned as the term of the lease. Moreover, in perfect accord with the foregoing, the lessees covenant that they will " quit and deliver up the premises . . at the end of the term aforesaid, except in case of purchase aforesaid.” construction that would date the purchase mentioned in this clause after the "énd of the term” would be absurd.

Thus far the minds of the parties were evidently fixed upon three years as the extreme limit of their relation of landlord and tenant. And in our opinion the phrase "or so soon as the said lessor shall acquire an absolute title to said premises and be able to convey the same,” read in the light of the other clauses already mentioned, do not extend the time, and that this was the sense in which those terms- were understood by the parties when they adopted them to express their intention.

The subsequent provision that "all taxes upon the premises to be paid by lessor until lessees shall purchase as they above agree,” does not conflict with this view, and neither does the covenant of the lessor "that so soon as she shall acquire title to the premises and be able to convey the same, she will sell, etc. •to the lessees” for the sum named. They both have reference to the three years.

If this be not the proper construction, then the phrase "at the expiration of said term” would be without meaning for the clause " so soon as the lessor shall acquire an absolute title and be able to convey the same,” would cover all the time both before, at, and after the expiration of the term.

Moreover looking outside of the instrument at the subject matter, the actual state of the title and the situation of the parties as the rules of construction authorize us to do, (Robinson v. Fiske, 25 Maine, 401; Littlefield v. Winslow, 19 Maine, 394; Richardson v. Palmer, 38 N. H. 212,) and we find not only nothing inconsistent with this construction but some things significantly pointing in the same direction. The mortgagee was in possession. More than two months prior to the date of the lease she had recovered a conditional judgment and could take possession by due diligence under her writ of possession in season to "acquire an absolute title at the expiration of said term;” or she could have foreclosed under the third mode prescribed in R. S., c. 90, § 3, and brought about the same result. These circumstances, together with the fact that, at the execution of the lease, the parties had in mind a prospect of the plaintiff’s acquiring absolute title by purchase of the outstanding interests before the expiration of the foreclosure satisfy us of their real intention as they expressed it in the lease, especially when we consider that they made no provision in it for an extension of it under any circumstances.

Plaintiff nonsuit.

Appleton, C. J., Barrows, Peters, Libbey and Symonds, JJ., concurred.