The Lease a Husband Had No Right to Sign

FOR RENT DUE. JUDGMENT IN A PIERCE COUNTY CASE REVERSED. Important Points in the Lease of Property in the City of Tacoma. The Supreme Court’s Opinion. [Notice—All decisions of the supreme court will appear in The Daily and Weekly Tribune.]

Alexander Isaacs, Samuel Isaacs and Morris Isaacs, respondents, vs. S. J. Holland and Samuel S. Loeb, appellants. No. 412, filed March 16, 1892.—Respondents brought suit to recover two months’ rent, amounting to $1,000, which they claimed to be due them from appellants, the defendants below, by virtue of a certain lease of a lot and building thereon, in the city of Tacoma. The lease was executed in due form on the 6th day of July, 1889, to take effect on the 1st day of September following, and to continue for the period of five years. The defendants went into possession of the premises thereunder and continued to hold the same, and paid the stipulated rent therefor, $500 per month until the month of August, 1891, at which time they refused to pay the rent any longer, and the respondents subsequently brought this action to recover the rent due for the months of August and September.

The defendants in their answer alleged that the plaintiffs were married men, and set up the necessary facts to show that the property leased was at all the times specified the community property of the plaintiffs and their said wives, and alleged that the said purported lease was void because the same had not been executed by the wives of the plaintiffs.

Appellants contend that by reason of the premises stated no action could be maintained on the lease, and cite Hoover vs. Chambers and Holyoke vs. Jackson, 3 Wash. Ty. 26 and 225, in support of their position. While possibly there may be something said in the opinions rendered in those cases which would in a measure justify this contention, yet the facts here are so essentially different from the facts in either of those cases that we do not regard them as applicable. In the first case suit was brought to compel the husband to execute a lease of community lands in compliance with an agreement made by him. The wife was not a party to the agreement, and the court refused to compel the execution of the lease on the ground that the husband had no power to lease community lands. The last case was an action brought to compel the specific performance of a contract entered into by the husband to sell community real estate, or for damages. It was subsequently resolved into an action for damages only. The defense set up was that the contract was made without the knowledge and against the will of the wife, and that she refused to join in the sale. The plaintiff knew of the marriage relation, and that the wife had not consented to the sale, and that it was community property. The money which had been paid was tendered back with interest, and it was decided that the plaintiff was not entitled to the relief demanded.

In the case at bar the wives of the plaintiffs have at no time appeared upon the scene, nor did they in any manner interfere with the defendants’ use and enjoyment of the property. The lease contained the following covenant:

“And the said parties of the first part covenant that the said parties of the second part, on paying the said monthly rent, and performing the covenants aforesaid, shall and may peaceably and quietly have, hold and enjoy the said demised premises for the term aforesaid.”

While the husbands could not execute a valid lease of community lands, we do not think this lease was absolutely void. If the defendants had been ousted we see no good reason why they could not have maintained an action for damages upon the breach of the covenant for quiet enjoyment. It does not appear that they knew the plaintiffs were married men, or knew the property was community property when the lease was executed, so that it could not be contended they stood in the position of willful violators of the law.

We are satisfied the defendants could not avoid the performance of the terms of this lease upon their part without first demanding a valid lease from the plaintiffs, and it does not appear that they did this.

We are also of the opinion that where a husband executes a lease of community lands, thereby undertaking to exercise a power that the law does not vest in him, and in violation of the law, the tenant who has taken the lease not knowing that the lessor was a married man, or that the land purported to be leased was community property, or if knowing it, having falsely been led to believe that the husband had authority to lease the same, upon learning the facts should be permitted to demand a valid lease, and if refused him to then abandon the premises if he has taken possession, and not be held bound to pay rent after such demand, refusal and surrender.

It was conceded upon the argument of this case that these tenants were occupying the property in question for the purposes of trade. A mercantile business, if successful, usually becomes more valuable with the lapse of time, and in becoming established in a permanent location a considerable time may be required in which to establish a business and make it profitable, and at the commencement and for more or less time thereafter it may well be a source of expense rather than profit, and the profit be derived after continuing therein a sufficient length of time to become known and established. The continuance in one location would ordinarily be an important factor in arriving at this result, and certainly one who has leased premises under these circumstances for a long period of time, not knowing the facts so that he himself would stand in the position of a wrongdoer, should not be compelled to continue therein and lay out money at his peril, or at a loss, with the prospect of having his business sacrificed after establishing it at the expense of time and money, by being ejected from the premises by the owners, or that after a demand for a valid lease, and a refusal to give one, that he should be compelled to remain in possession until notified to quit or proceedings should be instituted to eject him. An estoppel might arise against the wives upon learning the facts unless they in due time made some effort to obtain possession, but the tenant should not be compelled to wait for this to develop. If, however, the tenant knowing the facts should continue to occupy the premises he could not set up the invalidity of the lease as a defense to an action for the recovery of the rent stipulated, and this brings us to the consideration of a further question involved in the determination of this case.

The answer contained the following allegation:

“These defendants allege that they occupied the said premises from month to month and paid the rental demanded each month therefor until the month of August, 1891, when it was conceded by all the parties hereto that said pretended lease and agreement was void and of no effect; and these defendants refused to pay the rental demanded for the said month of August, and offered to surrender up said premises to plaintiffs; whereupon the plaintiffs requested these defendants to continue to occupy the said premises from month to month at a rental of $400 per month, which these defendants refused to do, but offered to pay the sum of $300 per month rental for the said month of August, and for each month of the time they should occupy said premises, which was refused on the part of said plaintiffs; thereafter, on the 24th day of said month of August, these defendants surrendered to said plaintiffs the said premises; whereupon the said plaintiffs requested these defendants to occupy the said premises from month to month at a fair and reasonable rental, which these defendants consented to do, and accordingly re-entered and made new arrangements, and have since accordingly held the same; that thereafter the said plaintiffs claimed and insisted that $400 per month was a fair and reasonable rental for the said premises, well knowing that $300 per month was a full, fair and ample rental therefor; that this unreasonable demand was not in good faith but was unjustly made for the reason, as defendants are informed and believe and so allege, that the said plaintiffs knew that it would be of great damage to these defendants to again surrender the premises.”

(To be continued.)