Vucinich v. Gordon

MOORE, P. J.

The question for determination on this appeal is whether the acquisition by a tenant of a one-third interest of a tenant in common terminated the lease and the obligation of such tenant under the lease.

March 25, 1935, plaintiffs who were then minors, through their guardian, and with the approval of the court, leased their undivided two-thirds interest in certain real property to defendant. They were joined in the lease by their sister, Desanka Vucinich, owner of the other one-third, whereby defendant obtained a leasehold interest on the entirety of the property which was situated in the city of Wilmington. The term of the lease was for five years, to wit, from January 1, 1935, to December 31, 1939, and was for a graduated rental whereby for the years of 1938 and 1939 the monthly rental was fixed at $100. The lease further provided that, on the last day of its term, the lessee shall peaceably and quietly surrender and yield up the premises to the lessor; that if the lessee should hold over after the expiration of the lease, then and in that event the holding over shall be deemed to be a tenancy only from month to month and the said lessee shall pay the sum of $500 for each and every month that he continues in possession of the property.

[436]

Three months before the expiration of the lease, to wit, on September 28, 1939, Desanka conveyed to defendant her undivided one-third interest in the property by a grant deed. Such deed was recorded January 26, 1940, whereupon defendant instituted his action for a partition of the property, the possession of which he continued to hold until the 30th of August, 1940, when plaintiffs filed this action to recover the rentals due them under the lease. Defendant contends that he ceased to be a tenant of the plaintiff after the expiration of the lease. This contention has no support in the law.

Upon the expiration of the lease, defendant became a tenant by sufferance.

(Hull

v.

Laugharn,

3 Cal. App. (2d) 310 [39 P. (2d) 478];

Kaye