Lewis v. Brandle ( 1895 )

Montgomery, J.

This is an action to recover possession of land, originally instituted before a circuit court commissioner. The complainant below either proved, or offered testimony which tended to show, each of the following facts: That complainant was, on the 9th of May, 1894, the owner of the land in question. The defendant had been his tenant up to January 1st, preceding, and continued to hold over without any new agreement. On the 9th of May, complainant conveyed the land to one Dupraw. Brandle disputed Dupraw’s right to possession, and claimed the right in himself. Complainant, with the purpose of arranging the matter in difference, and of protecting himiself against action on the warranty in his deed to Dupraw, on the 25th of May, made an agreement with Dupraw, by the terms of which Dupraw leased the lands in question to the complainant until November 15, 1894, giving him the right to sublet. Complainant thereupon, on the same day, made a written lease to defendant, running until November 1st. The lease contained a written clause waiving notice to quit. Defendant refused to vacate on November 1st, and on November 2d this proceeding was instituted. The circuit judge directed a ver-, diet for defendant, and complainant appeals.

The reasons given by the circuit judge for his ruling are that, by the deed from complainant to Dupraw, the latter became the landlord and the defendant his tenant; that the agreement subsequently made by Dupraw to lease to the complainant, not having been accompanied by actual investiture of complainant with possession, amounted at most to an agreement for a lease, and did not operate to constitute Mm the landlord of defendant; and that, this being so, defendant took nothing by Ms written lease from complainant, and might refuse to be bound by it, and was not bound to deliver possession to complainant.

We cannot adopt this reasoning. It is, in this State, no obstacle to a conveyance of lands, or an interest therein, that they are in possession of another. 2 How. Stat. § 5657. The lease to complainant was valid, although resting in parol, it being for a less period than one year. 2 How. Stat. § 6179. It is apparent that the parties intended a conveyance to take effect in prcesenti. Defendant’s counsel relies upon Vincent v. Defield, 98 Mich. 85. In that case we held that the owner, who- had leased to A. under a lease expiring May 1st, and had subsequently made a lease to B. beginning May 1st, might, on A.’s refusing to surrender possession, maintain an action to eject A.; but this was on the ground that A. was. not B.’s tenant, and because it was the duty of the owner, under the terms of his lease, to invest B. with possession, and B. was entitled to treat his failure to do so a-s a breach of the covenant in Ms lease. Neither of these reasons exists in this case for denying complainant a right of action against defendant. Dupraw was not required to obtain possession of defendant and deliver to complainant. The agreement did not contemplate this. And, moreover, when -the complainant, under a power to -sublet, had entered into a written lease with the defendant, he had,as between himself and Dupraw, obtained possession. The agreement between Dupraw and the complainant gaAre the latter the right to possession until November 15th. The lease, while it was ineffectual to vest possession in complainant as against the possession of the defendant, would be void only as to the estate of the defendant, which it infringed, and would be good, by way of estoppel, as to such estate as the lessor had in the land for the time named. Wood, Landl. & Ten. (2d Ed.) § 80. Defendant, having thereupon attorned to complainant, is not in position to be subjected to an action by Dupraw.

The judgment should be reversed, with costs, and a new trial ordered.

The other Justices concurred.