Salisbury v. Shirley

California Supreme Court Dec 13, 1884 No. No. 8,337Published

Before: Thornton

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Holding. The court held that the complaint stated a valid cause of action against the assignee of a lease for breach of tax covenants, that the plaintiffs were properly joined, and that the trial court's calculation of damages was correct.

Issues

Whether the complaint stated a cause of action against the defendant assignee for breach of lease covenants.
Whether the plaintiffs were improperly joined in the action.
Whether privity of estate existed between the plaintiffs and the defendant.
Whether the trial court correctly calculated the amount of taxes recoverable by the plaintiffs.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The complaint did state facts sufficient to constitute a cause of action against defendant.”

“The assignment of the term by the lessee to the defendant creates a privity of estate between defendant and the lessors.”

Synopsis

Lease—Death of Joint Lessor—Breach of Covenant—Parties.—After the death of one of two joint lessors, the survivor is the proper party plaintiff in an action to recover for a breach of covenant in the lease. Under such circumstances, no right of action passes to the personalrepresentative of the deceased lessor.

Id.—Plaintiffs—Guardian and Ward.—Where the joint lease is executed by the deceased lessor as guardian, the ward, after attaining majority, may be joined as plaintiff with the surviving lessor, in an action to enforce a covenant made for Ms benefit.

Id.—Assignment of Term—Privity of Estate.—An assignment of the term by the lessee creates a privity of estate between the lessor and the assignee, after the acceptance of the leasehold estate by the latter.

Id.—Covenant to Pay Rent and Taxes.—A covenant in a lease to pay rent and taxes runs with the land, and for a- breach thereof the assignee of the lessee is liable by virtue of his privity of estate. .

Taxation—Assessment—Dollar Hark.—The abbreviation “ Dolls.” is equivalent to the word “ dollars ” in an assessment for taxes.

Thornton, J. The complaint did state facts sufficient to constitute a cause of action against defendant.

The liability of the defendant arose out of the breach of the covenants of a lease executed by Mary Ann Frances Salisbury for herself, and as trustee and guardian of plaintiff, Joseph Hicks, and by Jotham Salisbury, to one William Shields, and by Shields assigned to the defendant. The term of the lease was for ten years and six months, commencing on the 1st day of March, 1859, and ending on the 1st day of September, 1869. The breach assigned was for non-payment of taxes by the defendant, assessed during the last six months of the term, in consequence of which the plaintiffs were compelled to pay them.

The foregoing matters are averred in the complaint, and it is also averred that the plaintiff, Joseph Hicks, ward of Mary Ann Frances Salisbury, became of the age of twenty-one years on the 22d of November, 1870, and that his guardian above mentioned died on the 26th of November, 1869.

It is further alleged that Shields entered into possession of the demised premises, and afterwards assigned the lease to the defendant, who immediately entered into possession of the premises, and remained in possession thereof during the remainder [225]of the term; and that during all the times mentioned in the complaint the plaintiffs were owners of the premises aforesaid, and tenants in common thereof. This action was commenced in December, 1870.

It is urged on demurrer that plaintiffs are improperly joined. We are of opinion that this position cannot be upheld. The lease was executed by Mary Ann Frances Salisbury for herself, and as guardian of Joseph Hicks, and also by Jotham Salisbury. It was a joint lease. Mary Ann Salisbury having died, Jotham Salisbury is a proper party plaintiff as surviving lessor (see Pomeroy’s Rem., etc., §§ 188 and 226, and cases cited in notesj, and as such can maintain this action. Under such circumstances no right of action passes to the executor or administrator of the deceased lessor. Joseph Hicks, the ward, having attained his majority before the suit was brought, could maintain an action for the breach of any covenant in the lease made for his benefit.

Jotham Salisbury is a proper party as the surviving lessor of Mary Ann Frances in her own right, and Joseph Hicks is also a proper party, as the successor of his deceased guardian, to a right of action growing out of the breach of a covenant in the lease made for his benefit. As Mary Ann Frances, in her own right, if she had survived, could have united with Jotham Salisbury and with Joseph Hicks, when he had attained his majority, in bringing this action, we see no reason why, when Mary Ann Frances had died, the present plaintiff could not join for the same purpose.

Salisbury v. Shirley

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