Seivert Et Ux. v. Powell

232 P.2d 806, 231 P.2d 791, 191 Or. 637

• Court: Oregon Supreme Court
• Decided: May 16, 1951
• Status: Published

Opinions

LATOURETTE, J.

This is a forcible entry and detainer action brought by plaintiffs to recover possession of certain premises theretofore leased to defendants, it being alleged that plaintiffs are entitled to the immediate and exclusive possession of such property located in the county of Multnomah, of which defendants are in possession and holding the same with force.

Defendants in their answer generally denied the allegations of the complaint and pleaded an equitable defense in substance that they had a ten-year lease on the premises at a rental of $60.00 per month for the first three years of the lease, $75.00 per month for the remaining seven years of the lease, and an option for an extension of five years for the sum of $90.00 per month; that they exercised their option for the five-year extension, and because of certain representations made by plaintiffs regarding a transfer of a portion of the premises to the Oregon State Highway Commission, they continued to pay to plaintiffs $75.00 per month for a period of two months after the expiration of the ten-year period; and that they were in effect lulled into a sense of security by the alleged deception and subterfuges practiced by plaintiffs on them. It was further claimed that plaintiffs had in their hands unearned insurance premiums aggregating $48.18, which defendants had paid to them, which was more than enough to offset the deficiency in the amount of $30.00 in rental for the two months.

It appears from the evidence that while said lease was in full force and effect plaintiffs sold to the highway commission a portion of the leased premises, subject to said lease, and when the instant action was commenced, plaintiffs were not entitled to the possession of all of the premises so leased to defendants, nor were they entitled to the full rental provided for in the lease.

Where there is a transfer of the reversion in a part of the leased premises, the transfer carries with it a proportionate part of the rent, unless there is an agreement to the contrary, for the rent is incident to the reversion and follows the grant. 32 Am. Jur., Landlord and Tenant, § 458; Annotation, 12 A.L.R. 828; 52 C.J.S., Landlord and Tenant, §§ 530, 531; 1 Tiffany, Landlord and Tenant, § 78; McIntire v. Bond, 227 Ky. 607, 13 S.W. 2d 772, 64 A.L.R. 630. See also Schmidt v. Thorsen, 89 Or. 584, 175 P. 74; Gribbie et al. v. Toms, 70 N.J. Law, 522, 57 A. 144.

There is nothing in the record to indicate the proportionate share of the rental to which plaintiffs were entitled under the lease. The lease required a rental payment of $90.00 per month for the entire premises, and since the rentals were not segregated as between the plaintiffs and the highway commission after the transfer to the commission, there is no way for the court to determine whether the two payments of $75.00 each made by the tenants equaled or exceeded the proportionate share of rental to which the plaintiffs were entitled, and the trial court was in no position to. hold, by reason thereof, that defendants were in default in their payment of rental so far as plaintiffs were concerned.

The case was tried and argued as an equitable proceeding in the trial court, and a decree was entered finding the equities in favor of defendants and against the plaintiffs. All parties concede that we are to try the case de novo on appeal.

It appears that while negotiations were pending between plaintiffs and the highway commission, plaintiffs came to defendants to inquire about how much they would take for a cancellation of the lease, which occasioned a reply from defendants that they would accept $7,500.00. Defendants’ evidence is undisputed that plaintiffs promised to take the offer up with the highway commission and give defendants an answer. Plaintiffs acquainted the highway commission with defendants’ offer, but in the interim, sold the property to the commission without giving defendants an answer.

Arthur E. Frag, of Portland, for the petition. George E. Bronaugh, of Portland, for respondents. Before Brand, Chief Justice, and Hay, Lusk, Latourette and Tooze, Justices.

After the sale to the highway commission had been consummated and after the ten-year lease period had expired, plaintiffs accepted from defendants a $75.00 rental payment on the extended lease without apprising them of the sale to the commission. When the next monthly rental payment was due, defendants tendered to plaintiffs another $75.00 rental payment, which plaintiffs rejected, and brought the present action. During all this time, plaintiffs told defendants nothing of the sale to the highway commission, nor did they know of it until the day of the trial. Such conduct on the part of the plaintiffs was highly inequitable. Affirmed.