Practice, Civil, Agreed statement of facts. Landlord and Tenant, Assignment, Covenant of lessor. Covenant. Religious Society. Corporation, Ultra vires. Words, "Lessees."
If an agreed statement of facts states that a certain parish made a lease "of a vacant lot of land," and it appears by the lease, a copy of which is annexed to the agreed facts, that the land leased was a portion of a lot of land owned by the parish and called the Parish Green, and that "the old meeting house now standing thereon" was sold by the parish to the lessees for a sum named, these statements in the lease contradict and control the statement in the agreed facts that the lot was vacant.
If an agreed statement of facts states that a certain person was a sublessee of a part of certain land "for a time equal to the remainder of the term of the original lease," this in legal effect is a statement that the person named was an assignee of the lease as to the portion of the premises stated to be sublet to him.
One who acquires the whole estate of a lessee of land in a portion of the land covered by the lease is an assignee and not a subtenant.
A covenant in a lease of land with the lessees and "their heirs and assigns" that at the termination of the lease the lessor or its successors will extend the lease to the lessees "or their heirs and assigns on reasonable terms for a reasonable time, or pay to them, . . . and their heirs or assigns a just and reasonable sum for such buildings and improvements as they, the said lessees may have put thereon," includes not only payment for buildings put upon the land by the lessees personally but also for those put there by a subtenant or an assignee, and the covenant being made with the lessees and their assigns runs with the land under the rule laid down in the second resolution in Spencer's case, 5 Coke, 16 a, b.
Where a religious society has no further use for an old meeting house and the land on which it stands, abutting on a business street, it is not ultra vires for the society to let the land to a lessee who agrees to buy the meeting house and to covenant to pay to such lessee or his assigns on the termination of the lease a just and reasonable sum for such buildings and improvements as shall have been put upon the land during the term of the lease.
LORING, J.
It is stated in the agreed statement of facts that the lease made in 1854 by the First Parish in North Bridgewater was a lease "of a vacant lot of land." But it appears from the lease, a copy of which is annexed to the agreed facts, that the land leased was "the southerly portion of a lot of land owned by said Parish, and called the Parish Green," and that "the old meeting-house now standing thereon" was "sold by said Parish" to the lessees for $1,226.60. These provisions of the lease contradict and control this statement in the agreed statement of facts.
The building here in question was erected by Hollywood, who appears to have been in possession at that time as an assignee of the lease of the portion of the land demised. It is stated in the agreed facts that he was then a sublessee "for a time equal to the remainder of the term of the original lease." We do not see how under these circumstances Hollywood could have been a subtenant.
One who acquires the whole estate of a lessee in a portion of the land covered by the lease is an assignee and not a subtenant. Daniels v. Richardson, 22 Pick. 565. Congham v. King, Cro. Car. 221, 222; S.C. sub nomine Conham v. Kinge, 1 Roll. Abr. 522, and sub nomine Conan v. Kemise, Jones, 245. Wollaston v. Hakewill, 3 M. G. 297. Cook v. Jones, 96 Ky. 283. See also the cases collected in 18 Am. Eng. Encyc. of Law, (2d ed.) 657, note 1.
But if Hollywood was a subtenant when he erected the building here in question, he became on March 15, 1904, an assignee of the lease so far as that portion of the demised land was concerned on which the building in question was erected, and the lease did not expire until March 21, 1904.
The covenant sued on has to do with the termination of the original lease, and in our opinion it is a covenant to pay to the lessees and their assignees on the termination of the lease (in case the lease is not extended as therein provided) "a just and reasonable sum for" any buildings and improvements which may have been put on the demised land during the term of the lease. The defendant has argued that the covenant is to be restricted to buildings put upon the land by the lessees and does not include buildings put upon it by subtenants or assignees of the lessees. We can conceive of no possible reason for such a discrimination having been made by the parties to the lease, and we think that such a construction is too narrow a construction of the word "lessees." If that were the true construction of the word "lessees" here, the covenant in question in the earlier part of the lease that "the said lessees shall have a right of way," and the covenant to "warrant and defend the free use and occupancy of said premises . . . as they, the said Baker and Kingman may deem proper," would have to be restricted in the same way. On the other hand the lease is a lease to "said Baker and Kingman to them and their respective heirs, executors, administrators and assigns," and the covenant in question is in terms a covenant "with the said Baker and Kingman, their heirs and assigns."
The defendant has argued that this covenant does not run with the land, relying on the second resolution in Spencer's case, 5 Coke, 16 a, b, in support of that contention. But the covenant is with the lessees and their assigns, as we have just said, and for that reason it does run with the land within the rule laid down in the second resolution in Spencer's case; and it is not necessary to consider Minshull v. Oakes, 2 H. N. 793; Gorton v. Gregory, 3 B. S. 90; Elliott v. Johnson, 8 B. S. 38; Stockett v. Howard, 34 Md. 121.
The defendant has argued that to require the parish to pay for this building is to divert its funds from the corporate purposes to which they are devoted.
But that is not a fair statement of the question of ultra vires which we have here. The question of ultra vires in the case at bar is this: Where a parish has no further use for an old meeting house and the land on which it stands, abutting on a business street, is it ultra vires to let the land to a lessee who agrees to buy the meeting house which has been superseded, the parish agreeing to pay on the termination of the lease "a just and reasonable sum for such buildings and improvements" as are put upon the land during the lease?
We are of opinion that such a lease is not ultra vires. The case comes within the class of cases referred to in Davis v. Old Colony Railroad, 131 Mass. 258, at p. 272: "Thus a corporation may let or mortgage property lawfully held by it under its charter, and not immediately needed for its own business. Simpson v. Westminster Hotel Co. 8 H.L. Cas. 712. Brown v. Winnisimmet Co. 11 Allen, 326. Hendee v. Pemberton, 14 Allen, 381."
As the case must stand for further proceedings, it is proper to add that in our opinion the plaintiffs are entitled to the sum of $3,267.98, stated in the agreed facts.
Judgment reversed.