Greenwood v. Bennett

95 So. 159, 208 Ala. 680, 1922 Ala. LEXIS 295

• Court: Supreme Court of Alabama
• Decided: November 16, 1922
• Docket: 6 Div. 589.
• Status: Published

Opinions

Statement.

THOMAS, J.

The action was unlawful detainer, and resulted in judgment for defendant. The property in question was leased by O. II. Nabb, the landlord, to defendant, Bennett, on November 19, 1918. The lease, contained the following provisions:

“Witnesseth, that the lessor does hereby rent and lease unto tlio lessee the following premises in the city of Birmingham, Ala., viz. that certain storehouse and premises known as No. 41], No. Twentieth street, about 17 feet by 75 feet in size, for occupation by him as a fruit stand and general store, and not otherwise, for and during the, term of three years, to wit, from the 1st aay of October, 1918, to the 30th day of Septembei-, 1921. * * *

“The terms and conditions typewritten on the back hereof are hereby made a part of this lease as fully as if set forth in the face hereof, and shall be binding upon both parties hereto. * * * ”

On the reverse or back of said lease is the following:

“1. The landlord reserves the right to terminate this lease at any time after the expiration of the first year thereof upon six months’ notice in writing given the said lessee, upon a bona fide sale of said premises having been made by the landlord. 2. The lessee does hereby pay to the lessor six months’ rental in advance on said premises. * * * ”

“Por value received, the undersigned hereby transfers and assigns to Arthur and Harry, and Spiro, and James Greenwood, all his'rights in and under the foregoing lease, together with the right to the rents to be paid under said lease, without recourse on him. Executed as of October 1, 1919. O. H. Nabb.”

The building embracing the store leased to Bennett was leased by Nabb to the Green-woods (plaintiffs in the court below, appellants here) on July 25, 1919. In that lease was the stipulation that the premises are leased to September 30, 1926.

“It is understood and agreed that J. H. F. Moseley has a lease on No. 411% North Twentieth street (including second floor of both No. 409 and No. 411 North Twentieth street), which expires September 30, 1920, and that Angelo Bennotos has a lease on No. 411 North Twentieth street, which expires September 30, 1921, and that said last lease may be terminated by giving six (6) months’ notice, in the event of a sale of the property described therein. Said leases are to be assigned to the lessees herein by the lessor herein as of October 1, 1919, and said lessees shall, thereupon succeed to all the rights of the lessor in said leases, and in the event of a sale of the premises hereby leased the term of this lease may, at the option of the purchaser, be reduced so as to expire five (5) years and six (6) months from the date such purchaser shall give notice to the lessees heroin of his desire to so reduce said term. Subject to the terms of their respective leases, said Moseley and Bennotos shall have the right of possession of the promises leased by them respectively until the end of the term of their respective leases, or until the same shall be terminated pursuant to provisions therein.”

On that date, appellee being in possession of a portion of the premises—that part in dispute known as'No. 411 North Twentieth street, Birmingham—and Nabb having transferred all his rights under the lease, together with rights to the rents (as of October 1, 1939), in August, 1919, paid rent to Nabb “up to October 1, 1919,” and was instructed by Nabb to pay the rent accruing after October to the Greenwoods, which he did to the time the controversy arose as to the right of termination of his lease.

The whole property was sold on October 1, 1919, by the owner, C. H. Nabb, to S. F. and F. E. Nabers, who on the 10th day of that ' month addressed a communication to the Greenwoods as follows:

“You are hereby notified that the purchasers of said property desire to exercise the option of reducing said lease and hereby give notice to you.as lessees of their desire to so reduce said term and hereby give notice that the term of said lease is reduced to five years and six months from the date of this notice.”

Which expiration was October 10, 1924. This notice was not admitted in evidence on defendant’s objection, to which exception was reserved.

On the same day said purchasers gave notice to:

“Messrs. Arthur Greenwood, Harry Greenwood, Spiro Greenwood, James Greenwood. You are hereby authorized to give notice to Angelo Bennett to vacate the premises subleased by him, namely, that certain storehouse and premises known as No. 411, No. Twentieth street, about 17 feet by 75 feet in size, in accordance with all the terms and stipulations of the original lease ’from C. H. Nabb to Arthur Greenwood, Harry Greenwood, Spiro Greenwood and James Greenwood, and the terms of the sublease. This the 10th day of October, 1919. Frank E. Nabers. Sam’l F. Nabers.”

On the following day notice was given defendant as follows:

“You are hereby notified that C. H. Nabb has sold and by deed conveyed to Drs. S. F. and F. E. Nabers the land including the building known as Nos. 490 [no doubt meaning 409], 411 and 411% North Twentieth street.

“According to the provision in our lease, ‘the landlord reserves the right to terminate this lease at any time after the expiration of the first year thereof upon six months’ notice in writing given the said lessee.’

“You are hereby notified that the purchasers of said property desire to exercise the option of reducing said lease, and hereby give notice to you through us of their and our desire to reduce said term, and hereby give notice that the term of said lease is reduced to six months from the date of this notice.

“Executed in duplicate this 11th day of October, 1919. Harry Greenwood, Arthur Greenwood, by S. Greenwood.”

And on March 10, 1920, notice was given defendant that his lease expired with the month “as per agreement in your [his] lease.” Pending other negotiations (by the lessees, Greenwoods, with the tenant Bennett) if he saw his “way out to remain there, the rent will be $200 per month temporary until further notice, beginning with the month of April, 1920.” And on June 5, 1920, defendant was given notice that:

“Your lease to the premises now occupied by you, namely 411 North Twentieth street, Birmingham, Ala., having expired, and your possessory rights in said premises having terminated, demand is hereby made upon you for immediate possession of said premises, and for payment of rent due from the expiration, of your lease. This the 5th day of June, 1920. Arthur Greenwood, Harry Greenwood, Spiro Greenwood, James Greenwood, by Erie Pettus, as Attorney.”

Tlie service of the several notices, the fact that after October 1, 1919, defendant paid rent to one of the Greenwoods, as he was directed by Nabb, that he went into possession of the premises in question after November 19, 1918, and retained same to and at the date of the trial in the circuit court, are uncontroverted facts, and on June 16, 1920, the unlawful detainer suit was instituted.

Opinion.

If the notice apd demand may be given by Greenwood, that given was sufficient for the purposes of an unlawful detainer as a substantial compliance with the statute, though not signed by all but a majority of the Greenwoods. Code, § 4263; Johnson v. Blocton-Cahaba Coal Co., 205 Ala. 373, 375, 87 South. 559; Eddins v. Galloway Coal Co., 205 Ala. 361, 87 South. 557; Ross v. Gray Eagle Coal Co., 155 Ala. 250, 46 South. 564; Kennedy v. Hitchcock, 4 Port. 230; Hilliard v. Carr, 6 Ala. 557; Barnewell v. Stephens, 142 Ala. 609, 38 South. 662; Shepherd v. Parker, 157 Ala. 493, 47 South. 1027; 26 C. J. 88, p. 838. One tenant in common may sue for and recover the entire tract in his own name. Lecroix v. Malone, 157 Ala. 434, 47 South. 725; Blakeney v. Du Bose, 167 Ala. 627, 52 South. 746; Hooper v. Bankhead, 171 Ala. 026. 54 South. 549. However, these authorities were in ejectment, against a person not claiming under a tenant in common: in such ease one tenant in common may recover the entire tract in his own name.

If, before the maturity of the note given for the rent, the reversion of the freehold passes to another, the rent passes unless such right or the right to collect it is reserved to the grantor. Deposit Bank v. Callee, 135 Ala. 208, 33 South. 152; Ala. Gold Life Ins. Co. v. Oliver, 78 Ala. 158; Coffey v. Hunt, 75 Ala. 236; Westmoreland v. Poster, 60 Ala. 448; Tubb v. Fort, 58 Ala. 277; English v. Key, 39 Ala. 113. The grantor, Nabb, instructed the tenant, Bennett, to pay after-accruing rent to the Greenwoods, and this he did. An attornment by the tenant to a subsequent purchaser is effectual as between themselves; the payment of rent as per the terms of the lease was evidence of or tended to show attornment; no evidence being introduced to the contrary. Birmingham Fuel Co. v. Boshell, 190 Ala. 597, 599, 67 South. 403; Howard v. Jones, 123 Ala. 488, 26 South. 129; Perkerson v. Snodgrass, 85 Ala. 137, 141, 4 South. 752; Houston v. Farris, 71 Ala. 570; McMillan v. Otis, 74 Ala. 560; Knox v. Easton, 38 Ala. 345; Edwards v. L. & N. R. Co., 202 Ala. 463, 80 South. 847. Having attorned to the plaintiffs, the tenant as defendant is estopped to deny or question the title or right of a purchaser to whom he had attorned to maintain unlawful detainer after that attornment. Hill v. Harris, 179 Ala. 614, 619, 60 South. 917; Code, § 4731. There is no uncertainty of the term of the lease— its duration is fixed by the stipulations of the parties carried into their lease, executed by the tenant and accepted by the landlord as their binding contract in writing as affecting the property in question for the time and to the extent indicated. Sarratt v. Arthur, 200 Ala. 53, 75 South. 365; Watkins v. Roden Coal Co., 205 Ala. 367, 87 South. 565.

Assignment of error is predicated on trial court’s sustaining defendant’s objection to admissibility in evidence of the written notice executed by Prank E. and S. P. Nabers and C. II. Nabb, the purchasers and the original landlord, respectively, and addressed to (he several Greenwoods. It was their notification of the sale of the whole property, the land and buildings known as Nos. 409, 411, 411% North Twentieth street, etc., and including the premises theretofore leased by Nabb to Bennett and other tenants, and that the purchasers, Nabers, claimed thereafter to be entitled to all accruing rents under the terms of said lease and to “all rights of the lessor under said lease.” .That notice called attention to the provision in the lease that in the event of a sale of the leaded premises, “the term of * * * lease may, at the optiqn of the purchaser, be reduced so as to expire five years and six months from the date such purchaser shall give notice to lessees” of their desire; gave notice to the Green-woods that the purchasers of said property desired and were exercising the right of reducing the lease to the extent indicated. A part of the property leased to the Green-woods and sold to the Nabers, and involved in this suit, was theretofore leased by Nabb to Bennett with the reservations we have indicated. That is, to repeat, on the 25th day of July, 1919, Nabb, as landlord, having leased to the Greenwoods the entire building (including the property theretofore leased to Bennett) the term of the lease being from the 1st day of October, 1919, to September 30, 1926; the Nabb-Greenwood lease made specific reference to the Angelo Bennett lease; that it was to be assigned to the lessees therein by the lessor as of date October 1, 1919, and that it was so duly assigned; and that “said lessees shall thereupon succeed to all the rights of the lessor in said leases,” and stipulated that in the event of a sale of the premises the term of the lease may, at the option of the purchaser, be so reduced as to expire 5 years and 6 months from the date such purchaser shall give notipe to the lessees of his desire to so reduce said term. Subject to .the terms of the respective leases, Bennett (and Moseley) shall have the right of possession of the premises leased by them respectively until the end of the term of their leases, or until the same be terminated pursuant to “provisions therein.”

It was the intention of Nabb, the landlord and owner of the freehold, and the Green- • woods, that the Bennett lease should be the binding contract between Bennett and the Greenwoods, and to that end the lease from Nabb to the Greenwoods contains the stipulations that, in the event of the sale of the premises at the option of the purchasers, the terms of the leases shall be reduced as stipulated, provided the purchaser should give due notice to the lessee of his desire to so reduce the term. In accordance with this stipulation, the foregoing notice of the desire of the purchasers to terminate the lease, on notice given by them to the Greenwoods, the owners of the leasehold estate, on the 10th day of October, 1910, should have been admitted in evidence. The purchaser of the freehold, Nabers, and the original landlord, Nabb, joined in such notice to the Greenwoods, owners and holders of the lease, on the whole premises, including that held by Bennett. This notice was admissible for the purpose of showing the desire and the exercise of the right of reducing the terms of the lease to the Greenwoods, who had succeeded to the rights of Nabb as landlord, as affecting the lease of a portion of the premises by defendant Bennett, and also shedding light upon and in explanation of authority for the notice given by the Greenwoods to the defendant of a desire to terminate the Bennett-Nabb lease upon 6 months’ notice given in writing.

The stipulation contained in the respective leases being a restriction imposed by the grantor upon granted premises for the term indicated, operated to enhance the value of this and the adjacent premises or separate portions or space in the same building, and was a strong circumstance to be considered with the provisions of the lease as acted upon by the parties, tending to show that such restrictions were not for the mere use of the grantor, but were a servitude appendant to the promises for the time indicated in the lease. Leek v. Meeks, 199 Ala. 89, 74 South. 31; Patterson v. A. C. L., 202 Ala. 588, 81 South. 85. It is true that it is only in the case of ambiguity and uncertainty that the rule is given application, that a lease must be construed most strongly against the lessor and liberally in favor of the lessee (People’s Bank v. Tissier, 154 Ala. 103, 45 South. 024), the general rule of construction being that a written lease is construed according to the intention of the parties thereto, to be gathered from the whole instrument, rather than from a single clause or clauses thereof; that, where the language is not clear, or circumstances attending its execution, the acts of the parties subsequent thereto may be considered in ascertaining the intention of the contracting party (Montgomery Enterprises v. Empire Theatre Co., 204 Ala. 566, 86 South. 880, 19 A. L. R. 987; Porter v. Henderson, 203 Ala. 312, 82 South. 668; Patterson v. A. C. L,, supra).

Though the right of reduction of lease survived the alienation of the land by Nabb, and inured to the benefit or interest of the purchasers (Nabers), were the Greenwoods authorized to make the demand for possession on June 5, 1920, and thereafter to institute the suit by the fact of attornment to them as lessees of the whole property under the lease from Nabb to the Greenwoods and the assignment to the Greenwoods by Nabb of his lease to Bennett to the portion of the premises in question? It was the intention of the respective contracting parties to the Bennett and Greenwood leases that, on a bona fide sale of the property by the landlord after the expiration of a year of tenure of the Bennett lease, the then landlord might shorten the term of that lease on notice to a period of 6 months therefrom. Was it in contemplation of Nabb and Bennett that a concurrent lease on another part of the premises should take effect during the period of the Bennett lease, or after the expiration of the Bennett lease; the condition precedent being a bona fide sale, by the landlord of the property and dne exercise of the right of reduction of the term of Bennett’s lease on 6 months’ notice? The sale of the property in contemplation of the parties to the lease, and the stipulation therein with reference thereto, was a sale by the owner of the freehold, and not a sale or assignment of the leasehold interest in all or a part of the property. Nabb assigned to the Greenwoods the Bennett lease under the terms of that instrument, that it may be terminated after the expiration of the year and the giving of the prescribed notice by the landlord, upon a bona fide sale of such premises having been made by the landlord. The landlords, within the contemplation of the parties, and so referred to in their lease under the instant facts, were Nabb, the Greenwoods, or the Nabers, as the case was, and we are of opinion that the provision was for the benefit of the purchaser. On due notice and demand from the Nabers to the Greenwoods the latter were required to deliver the possession they held to the Nabers at the expiration of their lease as reduced in term to 1924. In the attempt to put themselves in the way to do this, the Greenwoods, the landlord to whom Bennett had attorned, gave notice of reduction of the term, per lease stipulation, and thereafter (after expiration of that reduced term of Bennett’s lease and within the reduced term of Greenwoods’ lease) the latter duty demanded possession from Bennett. That is, after the expiration of the 6 months’ notice of reduction of the Bennett term, the tenant in chief (of the whole building within the terms of his lease) demanded possession of Bennett at a time when their leasehold interest existed and the right of possession had not returned to the owners of the fee and was not merged in the purchaser reversion.

The initial notice being efficacious to terminate Bennett’s lease, the right of possession of the property after expiration of the 0 months’ notice thereof, or time given by the Greenwoods for vacation by Bennett, was thereafter in the Greenwoods, and not in the Nabers.

In Dwine v. Brown, 35 Ala. 596, it was held that purchaser from a lessor cannot maintain the action of unlawful detainer, on account of mere holding over after the termination of the' lease pending which the purchase was made, for the reason that the purchaser’s title may not (in such action) be made the subject of inquiry in the assertion of the “acquisition of the title” by plaintiff and its denial by the defendant. This rule was adhered to in Cooper v. Gambill, 146 Ala. 184, 187, 40 South. 827; Shepherd v. Barker, 157 Ala. 493, 47 South. 1027. However, in Hill v. Harris, 179 Ala. 614, 619, 60 South. 917, the foregoing authorities are cited and considered, and the observation is made that, “if the tenant has attorned to him, this rule, of course, has no application.” Under last authority the judgment of the circuit court is reversed, and 'the case is remanded.

Reversed and remanded.

ANDERSON, C. J., and MeCDEBDAN and SOMERIVIDDE, JX, concur.