This case is before this Court upon a writ of error to the judgment of the Circuit Court of Logan County, rendered on July 28, 1958, in an action of unlawful entry and detainer therein pending.
The basic question presented relates to the proper construction and legal effect of a purported lease in writing, dated February 1, 1957, whereby Janie Conley, hereinafter sometimes referred to as the "lessor", undertook to lease the real estate in question to Frank J. Gaylock, hereinafter sometimes referred to as the "lessee", for a monthly rental of $100.
The pertinent provisions of the lease agreement are as follows:
"The lessor agrees to be liable for the premiums upon any insurance she elects to take out for the protection of the buildings thereon. The lessee agrees to be liable for any insurance premiums upon stock, equipment or
The lessee erected a building on the premises promptly after taking possession, at a cost, according to his testimony of $4,848.44. The building is designed to accommodate the lessee's service station and garage business.
On March 31, 1958, Janie Conley gave to Frank J. Gaylock a certain writing designated a "Notice To Terminate Tenancy". Such written notice referred to the tenancy as one "from month to month", and notified the tenant to vacate the real estate in question "by midnight on the 30th day of April, 1958." The tenant declined to vacate the property in response to the written notice, and in due time this action of unlawful entry and detainer was instituted. It was stipulated by counsel for the respective parties that the primary issue involved was one of law, and by agreement such issue was submitted to the court for hearing in lieu of a jury. In addition, each party to the action testified briefly, but the pertinent facts are not materially in conflict.
The controversy centers around the following provision of the lease: "The life of this lease shall be indefinite, being terminated only by the lessees inability to pay the monthly rental, or his decision to move his business to another location." The lessor contends that the lease is void ab initio because: (a) The duration thereof is indefinite; (b) it violates the rule against perpetuities; and (c) the rule against restraint upon alienation.
By an order entered on July 28, 1958, the lower court adjudged: "* * * that the Lease involved in the proceedings herein be considered a valid lease, duly executed between the parties, and that said lease created freehold estate approximating a tenancy for life, determinable at the instance of the Defendant or upon his violation of the conditions of the lease. It is, therefore, ordered that Defendant be awarded judgment, and possession of the premises be held by the Defendant and the writ of possession be denied to the Plaintiff."
"The rule against perpetuities requires that `every executory limitation, in order to be valid, shall be so limited that it must necessarily vest, if at all, within a life or lives in being, ten months and twenty-one years thereafter, the period of gestation being allowed only in those cases in which it is a factor.' 1 Minor on Real Property (2d Ed.), § 809." Brookover v. Grimm et al., 118 W.Va. 227, pt. 5 syl., 190 S.E. 697, 699.
In the case of Greene Line Terminal Company v. Martin, 122 W.Va. 483, 10 S.E.2d 901, 903, a leasehold is described as follows: "A leasehold, separate from the fee from which it has been carved, is property `which the law recognizes as a thing of value, but is incorporeal and intangible in its nature.' Dillon v. Bare & Carter, 60 W.Va. 483, 490, 56 S.E. 390, 393. Consult: Coal & Coke Co. v. Dillon, 59 W.Va. 605, 53 S.E. 928. A leasehold is `an estate in realty held under a lease.' Hayes v. City of Atlanta, 1 Ga.App. 25, 57 S.E. 1087, 1089." Whatever right the lessee obtained by virtue of the written
"The rule against perpetuities is not a rule of construction, but is an arbitrary, absolute, and fundamental canon to prevent indefinite control by a grantor or testator over the devolution of property." (Italics supplied.) Brookover v. Grimm et al., 118 W.Va. 227, pt. 4 syl., 190 S.E. 697, 699.
"* * * But the rule against perpetuities has reference to the time within which the interest vests and is not concerned with the postponement of the enjoyment of such interest." (Italics supplied.) 14 M.J., Perpetuities and Restraints on Alienation, Sections 2 and 3, pages 396-398.
The lease in question being based upon a valuable consideration, it is no objection that the lessee alone has the option to continue its operation. "At common law a lease to be held at the will of the lessee, is taken to be held also at the will of the lessor. However, when a lessee has a present subsisting interest in leased property based on an adequate consideration, the common-law rule does not apply, despite a provision in the lease that it may be surrendered at the pleasure of the lessee." Newsom v. Meade, 102 W.Va. 489, pt. 2 syl., 135 S.E. 604. The same question is annotated in a comprehensive note in 137 A.L.R., beginning at page 362. At page 375, the editors summarize the rule as follows: "By the weight of authority a lease is not rendered invalid, on the ground of lack of consideration or want of mutuality, solely by inclusion therein of a provision entitling one of the parties to terminate the lease, provided the consideration for the lease is otherwise sufficient, although not expressly referable to the option." Similarly, the rule is applied to oil and gas leases wherein the sole option to continue is accorded to the lessee; and such leases are held not to offend the rule against perpetuities. Todd v. Manufacturers Light & Heat Co., 90 W.Va. 40, 110 S.E. 446; Johnson v. Armstrong, 81 W.Va. 399, 94 S.E. 753; Lovett v. Eastern Oil Co., 68 W.Va. 667, 70 S.E. 707; Donley, Law of Coal, Oil and Gas in W. Va. and Va., Section 57, Page 70. Judge Brannon, in the case of Lovett v. Eastern Oil Co., supra, points out that the rule requiring mutuality of the right to terminate leases at will does not apply to leases which are based upon a valuable consideration.
The case of Thaw v. Gaffney, 75 W.Va. 229, 83 S.E. 983, 3 A.L.R. 495, involved a lease strikingly similar to the one presently being considered, as is disclosed from the first point of the syllabus: "A lease under seal, containing the following covenant by the lessor: `The said parties of the second part are to have said land for the purpose of building thereon two dwelling houses, and to have and to hold said land for and during the term of five years, or as much longer thereafter as the parties of
The case of Newsom v. Meade, 102 W.Va. 489, 135 S.E. 604, 605, involved the lease of real estate based upon a valuable consideration. The written lease agreement granted to the lessee: "The right to use and occupy all of said forty acres of land for such time as he may desire, upon the following terms and conditions: * * *." The lease was held to be valid. The second point of the syllabus is as follows: "At common law a lease to be held at the will of the lessee is taken to be held also at the will of the lessor. However, when a lessee has a present subsisting interest in leased property based on an adequate consideration, the common-law rule does not apply, despite a provision in the lease that it may be surrendered at the pleasure of the lessee." In the body of the opinion, with reference to the rights of the lessee, the Court stated: "* * * He had a present and substantial interest in the place. His estate is therefore not a mere tenancy at will, revocable at the pleasure of the lessors, but a freehold estate, approximating a tenancy for life, determinable only at his instance or upon his violation of the conditions and terms of the lease. The common-law rule in reference to estates at will therefore does not apply here."
The Court holds, therefore, that the lease in question is not void or otherwise invalid or unenforceable because the duration thereof is indefinite or because the continuance thereof is left solely to the option of the lessee. The Court holds further that the lease does not violate the rule against perpetutities nor the rule relating to restraint upon alienation. Notwithstanding the lease, the lessor may alien or convey the real estate in question, but subject, of course, to the lease.
The lease agreement is clear and unambiguous in relation to its terms and provisions, and, therefore, testimony of the lessor by which she sought to explain or vary its terms was properly rejected by the trial court. First Huntington National Bank v. Gideon-Broh Realty Co., 139 W.Va. 130, 79 S.E.2d 675; Shaffer v. Calvert Fire Insurance Co., 135 W.Va. 153, 62 S.E.2d 699.
For reasons herein stated, the judgment of the Circuit Court of Logan County is affirmed.