Braman v. Dodge , 100 Me. 143 ( 1905 )

Powers, J.

Action of forcible entry and detainer against an alleged disseizor. The issue at the trial was whether the defendant had a lease of the premises. There was testimony on the part of the defendant to the following effect: The >plaintiff had a lease in two parts prepared by his attorney who sent one part to the plaintiff in New York, and the other to the defendant who was living on the premises in Sullivan; that the plaintiff signed the part received by him and sent it to the defendant. The lease contained a covenant that the defendant should keep the buildings insured, and the defendant refused to sign it in that form. Thereupon the plaintiff told him to scratch it out, which he did, in the presence of the plaintiff, in the part received by the defendant from the plaintiff’s attorney, and then and there signed and delivered that part to the plaintiff, who accepted the same and permitted the defendant to remain in possession of the premises for a long time thereafter without any objection. The part of the lease held by the defendant, containing the insurance clause, was signed by the plaintiff alone; and the part held by the plaintiff, containing no insurance clause, was signed by the defendant alone.

The evidence was conflicting but the jury were justified in finding the facts as claimed by the defendant. Upon these facts it was competent for the jury to find that the minds of the parties met; that there was a waiver on the part of the plaintiff of the execution by the defendant of any covenants other than those contained in the part of the lease executed by him; and that it was the intention of the parties that the part held by the defendant should take effect as a lease. The insurance clause therein contained, which in the inception was intended for execution by the defendant, was an independent covenant and its execution might be waived by the plaintiff.

The defendant invokes section 13, chapter 75, B. S., which provides that no estate greater than a tenancy at will, can be created unless by some, writing signed by the grantor. The lease under which the defendant claims, however, was not the paper which the plaintiff did not sign but the one which he did sign, and which he permitted the defendant to retain. The plaintiff did not ask the defendant to sign this part, which contained the insurance clause, but accepted the other part with the insurance clause struck out in the plaintiff’s presence and by his direction before it was signed. He permitted the defendant to remain in undisturbed possession of the premises, and long after, in speaking to the defendant of the writing held by him and signed by the plaintiff, he referred to it as “the other lease.” The defendant neglected to erase the insurance clause in that part of the lease which he held. Its exact terms do not appear. The only testimony was that it said the defendant should insure the buildings. At the time of the trial the plaintiff had obtained possession of both pavts of the lease and produced neither. It was admitted that it was “an ordinary lease.” Under these circumstances the jury might well find that the grant of the estate was unconditional, and the covenant in regard to insurance an independent one which might be waived. The owner of real estate may transfer his land by a lease executed by him alone, and the lease will be effectual although it contains covenants for the execution of the lessee by signing and sealing but is not in fact signed by the latter. The lessor may waive the covenants on the part of the lessee. Libby v. Staples, 39 Maine, 166.

In Wilson v. Prescott, 62 Maine, 177, cited by defendant, the lease was not signed by the party whom it was attempted to bind by it. In the case before us the plaintiff is bound by the lease which he signed, and if the defendant had signed the insurance covenant he would have been bound by that. Not having signed it he is not bound by it. It being an independent covenant the. execution of which was waived by the plaintiff, such want of execution cannot detract from the binding force of the written grant of an estate signed and delivered by the plaintiff to the defendant in .exact conformity to the understanding of the parties at the time.

Motion overruled.