Holt v. Martin

The opinion of the court was delivered, by

Agnew, J.

Martin let the premises with a provision for an amicable action, and judgment in ejectment in case the lease should be determined by its provisions. A judgment having been entered, on the application of Holt, the court opened the judgment to let him into a defence. The case therefore came to tidal on its merits, and the defendant made an offer consisting of two parts. The first was to show a conveyance by Martin to Harper of one-seventh of the premises before action entered. There was no offer to show an attornment of Holt to Harper; that Harper renewed the lease, or was defending the possession for Holt. But the plaintiff still holding six-sevenths, was not precluded from recovering possession according to the terms of the lease. As to the defendant, the covenant was indivisible unless he could show an attornment or other act by Harper to sever the possession. Possession of the term was an entity, while it was only a portion of the reversion which was conveyed to Harper. Martin’s very purpose in proceeding upon the covenant in the lease may have been to comply with his sale to Harper, and invest him with the possession by determining the lease.

The second branch of the offer was to show that Martin, in making the lease, acted as agent of certain parties owning eleven twenty-firsts, who had revoked this agency, continued the lease to Holt and collected rent of him. At first sight this might seem competent, but a close inspection discloses a direct conflict with the rule that a tenant shall not dispute the title of his landlord as it was when he took the lease. It was Martin who let the premises to Holt. The relation of landlord and tenant, by the terms of the lease, was exclusively between them. The covenants were those of Martin and Holt alone, and the sealing and delivering also. Upon any breach of the lessor’s covenants, the action would lie against Martin and no other. Martin simply described himself as “ agent,” no more no less, and it is thought this opened the door to the proof. But agent for whom or for what? We are not informed. Was he a mere agent without an estate ; .or himself holding the legal title, was he an agent for purposes connected with the title he held ? None of these appear by the lease. And if agent for others, were they the same persons indicated in the offer ? If not, clearly Martin could rebut the proof offered. His calling himself agent was no admission of title in the persons named in the offer. Thus it was a direct attempt to deny the title of Martin, for if competent, it showed title in third persons, and brought on directly a conflict upon the title of Martin, and not upon the mere termination of the lease.

This conflict of title will be more clearly seen in other aspects of the case. Martin representing the whole title, gave notice to determine the lease according to the covenant of Holt, but the offer was to show it was continued by the owners of eleven twenty-firsts. How could this arrest the proceeding of Martin on the covenant to terminate the lease as to the owners of the remaining ten twenty-firsts ? It could be done only by division of the single'' covenant to Martin. If the defence be available, it must part the covenant of the tenant among these new landlords, enabling one portion of them to call for a determination of the lease, and another for a continuation and a demand of rent, things wholly inconsistent. If ten say to the agent, serve the notice to quit, and eleven say to the tenant, stay where you are, what is to be done ?■ This is a new state of things inconsistent with the terms of the lease, and that which was single in the entity becomes forked in the proof. If the tenant holds over under’ the authority of the eleven, how is the rent to be apportioned ? This again must depend on their title. Thus it seems to be clear that the offer is really and substantially nothing less than a denial of Martin’s title in the form in which he made the lease. He assumed to give possession of the whole, and to require its return to himself at the expiration of the term. By the express language of the lease, he alone could use the covenant, while the effect of the proof would be to sever the covenant, and convert an entity into disintegrated parts to be governed by conflicting provisions, thereby introducing incongruities not to be reconciled. Looking at the terms of the lease, the real nature of the defence offered and its impolicy, we think the learned brother was right in refusing the offer.

Judgment affirmed.

By agreement,- this decision disposes of the cases of Ridgway, Husted and Auter. Judgment of affirmance will therefore be entered in those three cases.