Peirce v. Grice , 92 Va. 763 ( 1896 )

Buchanan, J.,

delivered the opinion of the court.

By the lease of the 23d of September, 1867, the lessor had the option to continue the same for another term of ten years, upon the same terms and conditions, or to pay the lessee the value of the buildings which, by the terms of the lease, he was required to erect upon the leased premises. At the expiration of the first ten years the lessor continued the lease by allowing the lessee to occupy the premises and by demanding and receiving the same rent therefor. After the expiration of the second term of ten years the party claiming the premises (the plaintiff in this action) asserted a claim against the lessee’s assignee (the defendant) for an additional sum of $300 annually, for a period of five years, for the use and occupation of the buildings erected upon the leased premises.

For the recovery of that sum of $1,500, which the defendant refused to pay, this action was brought.

The defendant resists its payment on two grounds:

First. That the building, which was a two-story brick store, was erected by the lessee for the purpose of carrying on his business, and that he had the right to remove it as a trade fixture upon the expiration of his lease, and was therefore using and occupying his own and not the plaintiff’s property.

This contention cannot be sustained. By the terms of the lease the lessee bound himself to erect the store-house within six months after the lease was made, and was allowed to enter upon the leased premises more than three months before his term commenced, in order that he might be able to complete it within the time fixed. The erection of the building was an inducement to, and a part of the consideration for, the lease.

The lessee, in consideration of his expenditure in erecting the building; and of the rent reserved, was entitled to hold the leased premises for two terms, of ten years each, unless the lessor exercised his option not to renew the lease for the second term, in which event he was required to pay the lessee the then value of the building. Taylor on Land, and Ten., sec. 332 to 334 ; Rutgers v. Hunter, 6 Johns. Chy. 215 ; Casey v. Ellison, 20 Wend. 178.

As the lease was continued for twenty years, the full period which the lessee was entitled to, the lessor had, at the expiration of that time, the right to the possession of the leased premises, including the store-house. Where the terms of the lease require the lessee to erect buildings upon the leased premises, and there is no agreement for their removal by the lessee, he has no right to remove them. We do not think that the doctrine of fixtures has any application to this case.

The other ground upon which the defendant relies is, that he neither expressly nor by implication undertook to pay any other or greater amount than he has paid.

From the agreed state of facts it appears that the defendant held the premises after his lease had expired for nearly five years before any demand was made upon him for the sum sued for. During that period he paid $275 annually, in quarterly instalments, as provided for in the lease. There was no new agreement between the parties, continuing or changing the original lease. The plaintiff was therefore entitled to receive, and the defendant bound to pay, such sum for the use and occupation of the premises as the law implied under the circumstances of the case.

Where a landlord allows a tenant for a term of years to hold over after the expiration of his term, without any new agreement, he becomes a tenant from year to year, and the law presumes the holding to be upon the terms of the former lease so far as they are applicable to his new situation. 2 Minor’s Inst., 200-1 (4th ed.); Taylor on Land, and Ten. sec. 525 ; Digby v. Atkinson, 4 Campbell 275, 277 ; Doe v. Bell, 5 Term Rep. 471-2; Young v. Buchanan, 10 Gill & John. 149 ; Phillips v. Mergis, 5 Whart. 226.

Upon the implied contract growing out of the defendant’s holding over, he was only bound to perform, and the plaintiff was only entitled to exact from him, the performance of those obligations imposed by the original lease. And, it being admitted that such obligations had been discharged, the plaintiff was not entitled to recovfer in this case.

Prom what has been said, it is clear that Instruction Ho. 2, offered by the plaintiff, was properly rejected by the court.

Upon the whole case, we are of opinion that the judgment of the Circuit Court must be affirmed.

Affirmed.