Kennedy v. Duggan

Opinion by

Mb. Justice Fell,

This action was on a written lease in which Mary Allen and others were lessors and P. J. McGrath lessee. The defendants were sureties for the lessee. The plaintiff, was not a party to the lease. Before it was made he had brought an action of ejectment against the lessors to establish his title to an undivided half of the property. Because of the dispute as to the title and the litigation then pending, the plaintiff was requested to become a party to the lease, but he refused to do so and gave notice that on the trial of the ejectment he would claim mesne profits. McGrath then caused to be inserted in the lease a provision that if the plaintiff recovered in his action of ejectment, from that time but one half of the rent reserved should be paid to the lessors until it was determined to whom the other half was payable; that if he should be legally required to pay the plaintiff for the whole term, he should be allowed to apply so much of the rent reserved as was necessary for that purpose and that if the dispute as to the title was not settled in one year and a half that all rent should be withheld until it was settled. The plaintiff recovered mesne profits for the whole period of the time that McGrath remained in possession and he then joined the other owners, the'lessors, in a lease to a third party.

The only ground on which this action can be sustained is that the provision mentioned was intended for the plaintiff’s benefit if he succeeded in establishing his right. The lease does not admit of this construction and the circumstances under which it was made negative such an inference. The provision was evidently intended to protect the lessee from loss in the event that the lessors failed to sustain their claim of sole ownership of the property but it conferred no right on the plaintiff. There was no promise to pay him a part of the rent under any circumstances. The promise was to pay the lessors, with a reservation of the right to withhold a part of the rent due them by the terms of the lease, to meet any claim, growing' out of the occupation of the premises, which the lessee might be legally required to pay the plaintiff who had refused to accept him as a tenant and was treating him as a trespasser. There was no error in the instruction given, and the judgment is affirmed.