John S. Voorhees, for complainants. Wm. H. Vredenburgh, for defendants.
Bill in equity by John T. Mershon and another against Attie E. Williams and another to enjoin a suit at law. On rule to show cause why Injunction should not issue. Rule discharged.
John S. Voorhees, for complainants.
Wm. H. Vredenburgh, for defendants.
EMERY, V. C. The present application is to restrain by preliminary injunction the prosecution of an action at law for mesne profits. This action for mesne profits is based upon a recovery in ejectment by the defendants against the complainants, under which recovery the defendants have been put into possession of the premises. The complainant Harvey H. Mershon, who is the son of the complainant John T. Mershon, was in possession of the premises in question under a lease dated January 26, 1892, between the defendant John H. Williams (who was the husband of the defendant Attie E. Williams), as lessor, and the complainant John T. Mershon, as lessee. The lease was "for the term of one year from March 1, 1892, with the privilege of four more years, from March 1, 1893; and said Mershon [John T.] agrees to take said farm, with the privilege of four more years from March 1, 1893." The title to the farm was in the defendant Attie E. Williams, and the lease was not signed by her, nor was her husband authorized, in writing, to sign the lease, as required by the statute of frauds; and upon suit in ejectment brought on March 3, 1893, by the defendants against both of the complainants, final judgment was given against the defendants in the supreme court. Pending the suit, as appears by the bill, Harvey H. Mershon was forcibly evicted on April 29, 1893; and by proceedings under the forcible entry and detainer act he was afterwards restored to the possession of the premises, and remained in possession until both defendants were removed on the writ of execution in ejectment on December 17, 1894. No rent has been paid since March 1, 1893.
The equity upon which the complainant relies in his bill to overcome the effect of this judgment, which, by statute (Revision, p. 332, par. 44), is conclusive as to the right to possession, is based upon two propositions: First, that the complainants, under the lease, were entitled to remain for the further term of four years from March 1, 1893; and, second, that the defendant Attie E. Williams is, by her acts, admissions, and conduct set out in the bill and affidavits, equitably bound by the lease to the same extent as if she had signed. It is not claimed that she is bound to any greater or other extent than if she had signed the lease. The primary and fundamental question, therefore, is, what is the complainant's right, under the lease, to the extended term after March 1, 1893? The bill, upon this point, simply alleges, "And your orators further show that they exercised the option in said lease contained, of continuing said term for four years from and after the 1st day of March, 1893." The affidavits of both complainants, attached to the bill, fail to disclose how or in what manner, if at all, this option was exercised, and, indeed, are altogether silent as to this paragraph in the bill. The answer of defendants denies that this option under the lease was exercised by complainants, and shows that InFebruary, 1893, the following notice was given by the complainant Harvey H. Mershon, who was then in possession of the farm, to the defendant John H. Williams: "Mr. John H. Williams—Dear Sir: I hereby notify you that I will remain on the farm for the year 1893, and shall work the same according to our lease. [Signed] H. H. Mershon. Dated Feb. 20, *93." In the action of ejectment the supreme court held that this notice was, in effect, a notice by the tenant that he did not elect to take the farm for the further term of four years, but for a lesser term, to which the lessor had not assented, and that the tenant had not availed himself of his privilege to retain possession under the lease. Williams v. Mershon (N. J. Sup., 1891) 30 Atl. 619. This decision is a construction by the supreme court as to the effect of a notice of this character upon the tenant's option, and the respective rights of parties under a lease of this kind, which is binding in equity as well as at law; and it is, moreover, in the present case, an actual adjudication between these parties, which settles the question of the effect of the notice between them for all purposes, so long as the judgment remains unreversed. This court has no jurisdiction to review the judgment of the supreme court for any supposed error in the construction of the effect of this notice.
The claim of complainant's counsel, upon the argument, that a court of equity could give an effect to the notice different from that given to it in a court of law, because of a supposed Intention on the part of the tenant who gave the notice to remain for the full term, cannot be admitted. In the first place, the question as to the effect of such notice under the terms of the lease is a purely legal question upon which equity must follow the law, in deciding upon that branch of complainant's case which relates to the legal rights of complainant against John H. Williams under the lease. In the second place, there is no allegation in the bill, nor is there anything in complainant's affidavits, upon which a court of equity would have any right to proceed to adjudicate that this notice should, in equity, have any different equity from what it has been construed to have at law.
Complainant also insists that the notice was Ineffectual to make any change in the rights of the parties under the lease, because it was given, not by the lessee, John T. Mershon, but by his son, and that there is no proof of his agency. But in view of the fact that the complainant's bill is founded on the son's rights under the lease, and on his entry Into possession under it, a court of equity must treat his notice as affecting the right he claims. And, besides, the question as to whether this notice given by the son was effective to determine the option tinder the lease seems to be the precise point upon which the case at law was decided, and was decided affirmatively. It is thereby conclusively settled between the parties by the judgment in ejectment. The defenses which were considered or admissible in the court of law, in the action of ejectment, and which were there decided against the complainants, cannot be reconsidered here on bill for injunction to restrain the action for mesne profits. Holding this to be the effect of the decision and judgment by the court of law upon the question of the legal rights of the parties under the lease, I must deny the application for Injunction, and will advise that the order to show cause be discharged, with costs.