Holmquist v. Bavarian Star Brewing Co.

Ingraham, J. (dissenting):

I am unable to agree with Hr. Justice O’Brien as to the effect of the conversation testified to by two of the officers of the defendant in relation to the cancellation of the lease sued on. I cannot agree that we have arrived at a position at which a vested interest in real ■property can be conveyed by a mere conversation, and especially when that conversation is with an agent whose only authority in respect to the property is to sign, seal, execute and deliver deeds and conveyances for the leasing or the absolute sale or disposal of the property. I am inclined to the opinion that the proof of any agreement is so indefinite, and is contradicted by the deeds of conveyance by which the property was conveyed to the defendant, such deeds purporting to convey only the individual interests of the grantors, subject to the plaintiff’s intestate’s right of dower, and the testimony of each of the others, who are said to be the parties to the alleged agreement, as to be so clearly against the weight of evidence that the finding should be reversed. But assuming that there was some such agreement between these owners of the fee and the defendant, or its representatives, at the time of the conveyance, as was testified to by defendant’s witnesses, I do not think that such an agreement is binding upon the plaintiff’s intestate, or that it was ■sufficient to either annul the lease, which was under seal, and under which the defendant held the property, or to operate as an extinguishment or transfer of the plaintiff’s intestate’s right of dower in the property.

The situation of the parties to this transaction, at the time this ^alleged agreement was said to have been made, was as follows: The four owners of the fee of this property and the plaintiff’s intestate, who had an unadmeasured right of dower in the property, had joined in a lease by which they, as lessors, leased to the defendant, as lessee, the premises in question. Nothing was said in that lease ■as to the respective interests of the lessors in the property, or as to the proportion in which the rent was to have been divided, and it is clear that under that lease the defendant was estopped from denying the lessors’ title to the premises, and that the payment by the lessee of the rent to any of the lessors would be a discharge of the obligation to pay the rent. In any suit brought by the lessors to recover the rent, all of the lessors would be, necessarily, parties plaintiff, and on the face of the instrument itself each of the lessors might be entitled to an undivided one-fifth of the rent. As between the lessors themselves, however, a different principle would prevail. Each party would be entitled to the proportion of the rent that such party’s interest in the property itself justified. The parties owning the property, by joining with the plaintiff’s intestate in the lease, recognized her interest in the property, and in equity, I think, it ■could be considered as a setting apart to her the portion of the income to which she was entitled under her right of dower in the premises. As between the lessors themselves, it seems to me she would be clearly entitled to a third of the rents reserved after the payment of the taxes and other charges upon the property.

It is quite clear from the evidence that the defendant understood the interest of the plaintiff’s intestate in the property. The treasurer of the defendant testified that in January, 1889, Mr. Holmquist, the husband of one of the owners of the fee, and who had been appointed the agent of the lessors to collect the rent, told the treasurer that there was rent or board due for the plaintiff’s intestate, who was at some home or boarding house in Pennsylvania, and the defendant was requested to pay such board on account of the rent. Prom that time on he paid on account of the rent plaintiff’s intestate’s board to the person in Pennsylvania, with whom she was boarding, the amount being from $62.50 to $100 a month. Subsequent to this time, and in June of the same year, the defendant acquired the title of the four lessors who were the owners of the fee to the property; but in all conveyances of the property to the defendant they were made subject to the right of dower of the plaintiff’s intestate. These conveyances on their face reserved to the plaintiff’s intestate her" interest in the property, the conveyances being made subject to it, and such interest was expressly stated to be a right of dower in and to the premises conveyed. The defendant had, therefore, full notice of the plaintiff’s intestate’s rights in the premises, and took the conveyances subject to those rights. It then occupied a double position to the plaintiff’s intestate ; it was her tenant, holding under a lease from her which prevented it from disputing her interest in the property, with full knowledge of what her interest was, and acquired the fee of the property expressly subject to that interest. That interest, as between the lessors, was a right to a third of the rents of the property during her life.

There is not a particle of evidence that there was any agreement that the plaintiff’s intestate’s right to the amount that she was to be entitled to receive was anything less than the law gave her in the property, namely, one-third of the rents and profits during her life; and upon acquiring the conveyance of the property from the owners of the fee the defendant acquired just such right as the owners of the fee had, namely, a title to the property subject to the plaintiff’s intestate’s right of dower which, by the execution of the lease by plaintiff’s- intestate with the owners of the fee, was a clear recognition of her right, and, as before stated, gave her a right to one-third of the rents during her life. No agreement that the owners of the fee could make could affect the rights of the plaintiff’s intestate, and the only agreement that is testified to was an agreement by the owners of the fee with the defendant.

There is not the slightest evidence that either of the owners of the fee had any power to make such an agreement. The only authority that plaintiff’s intestate had given to any of them was the power of attorney by which she appointed her son, Sebastian Sommer, as her attorney to sign, seal, execute and deliver such deeds and conveyances for the leasing or the absolute sale and disposal of the premises in question, and no such deed was executed by the attorney. What the defendant did after their execution was to continue the payments that it had before made to the person with whom plaintiff’s intestate was living for her board, and there is no evidence to show that plaintiff’s intestate ever had any knowledge of the source from which these payments came. They had, before the execution of this conveyance, been made on account of the rent reserved by the lease, and after the conveyance there was nothing to show that they were made on any other account, or in any other way, so far as this plaintiff’s intestate was concerned. The amount due to the plaintiff’s intestate was largely in excess of any payments made by the defendant, and there is nothing to show that she had any knowledge of the alleged agreement upon which the defendant relied. No estoppel, therefore, can arise which would prevent the plaintiff’s intestate from claiming at any time the balance due her under the lease; nor can this verbal agreement be upheld, as against the plaintiff’s intestate, on the ground that it was an executed contract which a court of equity would enforce; she had no knowledge of the existence of such a contract, and had received nothing on account of it, knowing that it had been made. She had a right to assume, if her attention was called to it, that the payments were made, in accordance with the original request, to the defendant to make the payments on account of the rent.

The right of a person entitled to dower in premises to dispose of her interest in the premises before the dower has been admeasured, is fully recognized in this State by the authorities. In the case of Tompkins v. Fonda (4 Paige, 448) the chancellor said: <l But in equity if the widow is in possession or is entitled to an assignment of dower immediately the want of a mere formal assignment of dower is not considered material; and if she has received the income of ■ the whole premises, either as guardian of the hem at law, or otherwise, she will, upon the taking of an account thereof, be entitled to-retain her third although her dower has not been assigned.” And in Payne v. Becker (87 N. Y. 158) the court says: “ And it must, now be deemed settled that u23on the death of her husband a widow has an absolute right to dower in the lands of which he had been seized; and that this right or interest, although resting in action, is. liable in equity for her debts.”

In the case of Pope v. Mead (99 N. Y. 201) it was held that,, where a doweress joined in a conveyance of the j^roperty, taking-back to herself a mortgage, the mortgage secured to her the purchase money; that upon a foreclosure of that mortgage she was-entitled.to the value of her dower as secured by the mortgage, and that that right was su23erior to that of the owners of the fee, subject to the dower, although dower had not been admeasured or set apart to her.

A2323lying the 23rinciple established in these cases it must be held that the plaintiff’s intestate was in 2;)ossession of the premises U23on the execution of the lease by her to defendant, and the execution of that lease, reserving the rent to her, 23ut her in the same position as if dower in the 2)remises had been assigned to her. She was thus entitled to an undivided one-third of the rents of the-property reserved by the lease, and that interest was superior to the-right of the owners of the fee, and was superior to the right that the defendant acquired by the j>urchase of the 23roperty from the owners of the fee.

I think, therefore, that the judgment should be modified by directing an accounting before a referee as to the amount due for rent under the lease subsequent to the conveyance of the fee to the defendant and to the time of the plaintiff’s intestate’s death, and directing judgment for one-third of the net amount of the rents of the pixqserty after deducting all 23ayments made by the defendant for taxes or other charges U23on the property, with costs to the appellant.