Stratford Co. v. Continental Mortgage Co.

WORKS, J.

In its inception this action was one in unlawful detainer for nonpayment of rent. The complexion of the litigation, however, was materially changed by the filing, pursuant to an order of the trial court, of an amendment to the complaint to conform to the proof. We shall lay aside a contention of respondents that the court was without power to permit the filing of the amendment and shall proceed to a discussion of the merits of the question which appellant seeks to present. The judgment was in form in favor of plaintiff, but as the court refused to award it the full measure of relief for which it contended, that party appeals.

Appellant, a landlord, insists that it was entitled to ■ a judgment declaring a forfeiture of a lease out of which the rights and duties of the respective parties spring, and it is that relief which was denied by the trial court. The lease contained a paragraph forbidding assignments of the in

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strument without the consent of the lessor. A part of the paragraph follows, with our italics: “It is expressly made a condition of this lease that in the event that any person, other than the lessee named herein, shall secure possession of the interest of the lessee

hereunder,under execution, or by reason of any receivership or proceeding in bankruptcy, or other operation of law, or otherwise,

... all interest of the lessee hereunder, shall, at the option of the lessor, forthwith cease and terminate, and the lessor may forthwith or at any time thereafter, . . . re-enter and take possession of said premises ...” The contention of appellant that it was entitled to judgment that the lease had been forfeited is based upon this language of the instrument and, particularly, upon the italicized portion of it. The claim that there was a forfeiture is founded upon these further facts: During the term created by the lease the lessee died. Letters of administration in the matter of his estate were taken out by his wife and she entered upon her duties as administratrix. In the due course of the administration of the estate, and upon due drder of the court sitting in probate, the administratrix sold the leasehold interest of the lessee under the lease and made assignment of the instrument to the purchaser. The latter went into possession under the assignment. The sole question presented by appellant for determination, doubly stated, is this: Did the assignment come within the language of the lease which is above set forth? Did the sale and the consequent assignment of the leasehold interest invade the legal meaning of the words “or other operation of law, or otherwise”?