Loomis v. G. F. Heublein & Bro.

The controversy between the parties relates to the construction which is to be placed upon the instrument from Harger to Fenn which is recited in the statement. The plaintiff contends that the instrument is either a lease from year to year terminable by either party upon notice at the expiration of any current year, or that it is a lease for an indefinite time, terminable at the will of the lessee any year, and therefore in like manner terminable at the will of the lessor; and that in either case the plaintiff's notice of his election to terminate the lease on December 31st, 1915, operated to terminate it upon that date, and that he is therefore now entitled to possession of the premises in dispute. The defendant contends that the instrument is a deed conveying a fee in the premises to Fenn, his heirs and assigns, qualified or determinable upon the nonpayment of any of the annual payments of $25 therein provided for, and that as the agreed facts show that these payments have been made, the plaintiff has at present no interest in the premises except the right reserved in the deed to take water by a pipe for domestic purposes to the Harger house and barn and water for creatures at pasture.

In the argument and the brief submitted in behalf of the defendant, it has not been disputed that if the instrument in question is a lease, a mere chattel interest in the premises was thereby conveyed and that the tenancy created was either one from year to year or at will. And it has not been, and cannot be, seriously claimed, that if the instrument conveys, as the defendant claims, a fee, although it be what is called a base, qualified or determinable one, the plaintiff has any present interest in the premises except those which are reserved in the instrument. He has at most in such case merely a possibility of reverter should the event happen upon which the fee is limited. 1 Reeves on Real Property, p. 621, § 436; 1 Washburn on Real Property (6th Ed.) p. 78; 10 R. C. L. p. 653; Lyford v.Laconia, 75 N. H. 220, 72 A. 1085; Whiting v. Whiting,4 Conn. 179, 182.

The parties are agreed that Harger intended by the instrument to convey to Fenn some interest in the spring and the land surrounding it. We are asked to determine what interest was conveyed and this must be determined from the deed in question. The words of conveyance used by the grantor were "I lease," and he speaks of the annual advance payments of $25 as rent.

By a lease we ordinarily understand a conveyance of lands or tenements by one person to another for life, or for years or at will, in consideration of rent or other recompense by the latter. Branch v. Doane,17 Conn. 402, 411. The words referred to as used by Harger in the instrument now in question were therefore apt words to be used if the parties had contracted for a lease of the spring and adjoining land. In construing the instrument, however, we are not confined to a consideration of these words alone, but are bound to consider the language and terms of the whole instrument to determine what was in the minds of the parties to it. Connecticut Spiritualist Camp-meeting Asso. v.East Lyme, 54 Conn. 152, 155, 5 A. 849; Tuttle v. Harry,56 Conn. 194, 198, 199, 14 A. 209; Jamaica PondAqueduct Corporation v. Chandler, 91 Mass. (9 Allen) 159, 167. In each of the cases cited, the document under consideration was described as a lease, but was held to convey an estate of a higher nature than a term for life or years or at will. In the present case the document runs from Harger, his heirs and assigns, to Fenn, his heirs and assigns. These last words are essential to convey a fee, but unnecessary in a lease for a term of years or at will. The document names no term for the occupancy of the premises by the lessee, except that it is to be "so long as" he pays the annual rent of $25 in advance. The use and enjoyment of the premises by the lessee and his heirs and assigns is, therefore, to be perpetual, limited upon the nonpayment of the rent. A deed which conveys the absolute possession and enjoyment of land to a person, his heirs and assigns forever, without limitation, conveys an estate in fee simple. One which conveys the possession and use to a person so long as he makes certain annual payments, or so long as a certain river runs, or tree stands, conveys a qualified or determinable fee. 2 Reeves on Real Property, p. 1021, § 724; 10 R. C. L. p. 652, § 8. In a lease the lessee ordinarily covenants to pay the rent reserved, but there is no such covenant in the instrument before us. The lessee ordinarily signs a lease, but in the present case he did not sign the instrument in question. The purpose for which the leased premises are to be used or occupied is ordinarily stated in the lease, but the uses and purposes of the occupancy in this case are not stated. If the purpose was to convey a fee determinable upon the nonpayment of any of the payments constituting the consideration for the conveyance, we should expect that only the grantor would sign the deed, there would be no occasion for a covenant to make the payments for the first nonpayment determined the estate, and none to state the purpose for which the premises were to be used, for as the estate conveyed in such case would be a fee, the grantee could use the premises as he should see fit. If a fee were intended to be conveyed, the reservation by the grantor of the right to take water from the spring by a pipe for domestic purposes and of water for the creatures while at pasture is explainable and consistent. If a lease terminable in a year or at the will of the grantor was intended, and the title to the property was to remain in him, we would expect to find the instrument limiting the amount of water which the grantee should take from the spring rather than reserving to the grantor the right to take a limited amount therefrom. The provision that the grantee shall have the premises so long as he makes the payments, is entirely inconsistent with the plaintiff's claim that the grantor or his heirs and assigns may at will at the end of any year terminate the lease and oust the grantee his heirs or assigns from the possession, although payment is tendered.

We think that under the deed Fenn took a qualified or determinable fee in the premises described, and that, no default having been made in the payments mentioned in the deed prior to the institution of this proceeding, the defendant had an estate in fee limited upon its failure to make the annual payment of $25 as provided in the deed. The payment to be due on the last day of December, having been tendered by the defendant and refused by the plaintiff, is to be taken as paid. The notice given by the plaintiff of his intention to terminate the lease and that the defendant was to quit the premises on or before the first day of January, 1916, was without effect upon the rights of the defendant. This being so, the defendant was lawfully in possession of the premises when this action was begun, and the plaintiff had no right to the possession thereof.

The Superior Court is advised to render judgment for the defendant.

No costs in favor of either party will be taxed in this court.

In this opinion the other judges concurred.