Morrison v. Smith

Bond, J., delivered the opinion of the Court. The controversy in this case is between the parties to a lease, and arises over its construction, especially the last clause. It is as follows : “ This lease, made this 30th day of March, 1888, by and between Caroline Morrison, of Allegany County, State of Maryland, party of the first part, and J. Hunter Smith, of Mineral County, State of West Virginia, party of the second part: “ Witnesseth, that for and in consideration of the covenants hereinafter set forth, the said party of the first part doth lease and demise unto the party of the second part, all that farm or parcel of land known as the Ashby Place, for the term of seven years, beginning on the first day of October, 1887, and ending on the first day of October, 1894. “ And the party of the second part doth agree and bind himself, his heirs and representatives to pay or cause to be paid the sum of one hundred and fifty dollars for each and every year of said term, to be paid half-yearly, that is, seventy-five dollars on the first day of April, 1888, and seventy-five dollars on the first day of Octobor, 1888, and so on to the end of said lease. “And the party of the second part doth further covenant and agree to bring under proper cultivation and drainage and fencing up with rails or post and board fence all the bottom land belonging to said tract lying between the county road and the Potomac River, also to have the privilege to clear out and fence up all the land lying against the mountains that he would deem advantageous to both parties, but he is in no case to allow to be cut any timber except what is to be used on the premises, without the consent of ⁸¹ the party of the first part; and it is further agreed that the party of the second part shall not and will not at any time during the term of seven years let or demise, or in any manner dispose of the hereby demised premises, or any part thereof, for the term hereby granted, to any person or persons, nor to occupy or use the same in any other manner than for regular farming or gardening purposes, or to permit the egress and ingress of any person or persons to said land, without first obtaining permission from the said party of the first part. “ And the party of the second part binds himself to erect a stable and other buildings at his own expense. “And the party of the first part for herself, her heirs and representatives covenants and agrees to erect a good and substantial farm-house for the use of the party of the second part. “ And it is further agreed by the parties to this lease that in case the party of the first part wishes to sell said property hereby demised, she may do so by paying to the party of'the second part a fair valuation for all improvements he may make up to the time of sale, but in case of no sale is made, then the party of the first part at the expiration of this lease agrees to give to the party of the second part the-refusal of a further five years’ lease at such rent as any good! and bona fide person will agree to give. “ And is it further covenanted and agreed by and between the parties hereto, that in case default shall be made in any of the covenants of this lease, then it shall be null and void. Caroline W. Morrison, [Seal], J. Hunter Smith, [Seal].” It will be perceived by one of its provisions, that the term of seven years was liable to interruption and termination by a sale of the farm ; in which event it was provided that the tenant, appellee, should be paid “a fair valuation for all improvements” he might make to the time of the sale.

The appellee entered and took possession of the farm under the lease and held it until about the 1st of May, 1894. About ⁸² the 1st of March of that year, 1894, he received a written notice from a Mr. Davis to the effect that he had become the purchaser of the farm. Upon receipt of such notice he called upon the appellant to learn whether she had in fact made a sale, and was told that she had, and that she had sold the property to Mr. Davis. He thereupon removed from the farm about the ist-of May and gave possession up to Mr. Davis, in accordance with the terms of his agreement, before the expiration of the full term of seven years; and then brought this suit for the improvements made by him on the covenant to repay in case of such sale.

The amount claimed for such work and improvements, according to the bill of particulars accompanying the narr., was .$1,197.43, and the sum awarded him by the jury was $544.95. The appellant, as defendant below, filed two pleas to the •declaration. Only with the first are we concerned. By her -first she claimed that the plaintiff had incurred a forfeiture •of the lease by “reason of his failure to pay the instalment of rent due October 1st, 1893,011 which day it fell due and was demanded.

A demurrer was filed to this plea and very properly overruled,