#### Sizer, Executrix, Appellant, vs. Clark, Respondent.

*January 14*

February *3, 1903.*

*Landlord, and tenant: Option to purchase: Acceptance of option: Notice: Tender of performance: Evidence: Material error: Exceptions: Instruction to jury.*

1. An. option contained in a lease provided that, in case the lessee “should wish to buy” the premises at any time during the period of the lease, the lessor would sell and deliver the same to the lessee, free and clear of all debts and taxes. The lessee made improvements relying on the option, and, eight days before the termination of the lease, gave the lessor verbal notice of his election to purchase, and was ever afterwards able, ready, and willing to receive a conveyance and make the pay*535ment. By reason of the absence of tbe lessor tbe lessee was unable to make an actual tender and demand of a conveyance until nineteen days after tbe expiration of tbe lease, wbicb was then done, tbe lessee meanwhile remaining in possession of the demised premises. *Held,*that the agreement only required the lessee to notify the lessor that he wished to buy and pay the price to make it a binding contract, and the notification given was sufficient.

2. In such case, by reason of the agreement contained in tbe lease, and the election of the lessee, the conventional relation of landlord and tenant was terminated and superseded by a contract for the purchase of the premises.

3. In such case, it further appeared that the lessor, prior to the termination of the lease, conveyed to one who took with full knowledge of all the facts. The covenants contained in the lease were expressly made binding on the parties thereto and “their assigns.” *Held,*that when tbe lessee, prior to tbe expiration of his lease, notified the lessor of his election to exercise the option to purchase, the lessor and his grantee both became bpund to make the conveyance on payment of the agreed price to the lessor. -

4. In such case, it is not error to admit testimony as to lessee’s ability and readiness to pay the purchase price, and that the lessee had acted on the assumption that the contract was binding.

5. On the trial of an action tbe court, in presenting tbe issues to tbe jury, read to tbe jury portions of tbe defendant’s pleading. Tbe charge was fair througbout. *Held,*that no error was thereby committed.

Appeal from a judgment of the circuit court for Eond du Lac county: Michael BÚRWaet, Circuit Judge.

*Affirmed.*

This action was commenced April 17, 1900, by the plaintiff’s testatrix, Susan IT. Sizer, to remove the defendant from certain premises described, on the ground that he was wrongfully holding possession thereof after the expiration of the lease under which he entered into such possession. It appears, and is undisputed, that March 2, 1891, Susan H. Sizer’s grantor, R. B. Sizer, then the owner of the premises, made a lease in writing of the same to the defendant for the term of one year from April 1, 1897, therein agreeing to give to the defendant at the end of the first year the refusal for, *536two additional years at the same annual-rental of $180 per year, payable in monthly payments of equal amounts; and the said lease contained a provision to the effect that the said R. J. Sizer therein further agreed “to sell the property” to the defendant, “should he wish to buy it, at any time during the period of this lease or the extension, for the sum of $3,000, and to deliver the same to” the defendant “free and clear of all debts and taxes, for the aforesaid price of $3,000 cash.” The defendant therein agreed to pay the rent at the times and in the manner aforesaid during the continuance of the lease, and not to underlease the premises, nor assign the lease “without the consent of the lessor, and to quit and to deliver up the same to the lessor peaceably and quietly at the end of said term,” etc. And the lease also contained a provision that “the covenants herein contained shall bind the parties mutually, and their respective heirs, executors, administrators, and assigns.” The complaint alleges, in effect; the facts stated, and also that the defendant failed to purchase such premises as stipulated in the lease; that the period of the lease had expired; that the defendant held over the premises unlawfully and without permission of the complainant or the said R. J. Sizer; that April 6, 1900, the defendant was served with a written notice requiring the delivery of the premises to the complainant. Judgment was demanded that the defendant be removed from the premises. The defendant answered by way of admissions, denials, and counter allegations, to the effect that he had an option to purchase the premises at any time before April 1, 1900, for $3,000; that, relying upon such option, he had expended money and labor in improving the premises, and decorating the interior of the house, and filling up the yard; that March 26, 1900, the defendant notified R. J. Sizer of his election to purchase the premises, and that he was then ready to pay the agreed consideration of $3,000; that R. J. Sizer then and there promised to carry out such agreement, and agreed to complete *537the sale, and have the necessary papers made out to consummate the purchase; that the defendant repeatedly went to the office of the attorneys of R. J. Sizer to see that the papers were made out, as agreed, hut that they were not so made out; that he continued to go to the office of such attorneys to see about such papers until he was notified, to deliver up the premises, April 6, 1900; that the defendant and another on March 30, 1900, went to the abode of R. J. Sizer, and tendered payment of the $3,000, and then and there demanded of him a deed of the premises in accordance with the terms of the contract, and that such tender and demand were proclaimed at said abode of R. J. Sizer for the reason that the defendant was unable to find the said R. J. Sizer, although he made diligent search for that purpose; that he continued to search for the said R. J. Sizer from that time up to April 6, 1900, when the defendant received notice to quit the premises; that the defendant alleges that R. J. Sizer absented himself during the aforesaid times for the purpose of preventing the defendant from mating a tender to him of the $3,000; that April 19, 1900, the defendant was given the first opportunity to make the tender, as agreed, which he did, and then and there demanded a deed of conveyance of the premises, and that the said R. J. Sizer refused to accept such tender and to carry out his part of the contract for the sale of said premises; that the defendant is still in the possession of the premises, as the owner of the equitable title thereof; and that he is ready and willing to carry out his part of the contract, and to pay the price of $3,000, as the court may direct.

At the close of the trial, the jury, by the direction of the court and consent of counsel, returned a special verdict to the effect that on or about March 24, 1900, the defendant notified R. J. Sizer that the defendant elected to purchase the premises described, pursuant to the terms of the contract of sale contained in the lease; (8) that when Susan IT. Sizer received the deed of the premises from R. J. Sizer to herself *538(March 29, 1897), and thenceforth, she knew or understood that theretofore said lease, or an instrument giving to the defendant an option to purchase said premises up to April 1, 1900, had been executed and delivered to Hie defendant by R. J. 'Sizer; (10) that April 6, 1900, Susan H. Sizer, plaintiff’s testatrix, did cause to be served on the defendant the notice in writing in evidence, demanding of the defendant the possession of the premises; (11) that on or about April 19, 1900, the defendant tendered to R. J. Sizer, in person, $3,000, in legal-tender money of the United States, as payment of the purchase price of the premises under such contract, and demanded of him a deed conveying said premises to the defendant pursuant to said contract, and that R. J. Sizer refused to accept said money, and refused to comply with the demand for a deed. And the jury further found, as matters of fact, (2) that March 30, 1900, the defendant demanded a deed of the premises, and tendered payment therefor, under the circumstances and in the manner alleged in the answer; (3) that March 24, 1900, and at all times since, the defendant was able, ready and willing to receive a conveyance of the premises, and make payment therefor, according to the terms of the contract of sale contained in the lease; (4) that April 6, 1900, the defendant informed R. J. Sizer that the defendant was ready to accept a deed of the premises, and to pay therefor according to the contract, and that, in reply, R. J. Sizer said that it was then too late for the defendant to do so; (5) that April 6, 1900, was the first time after March 24, 1900, when the defendant had any reasonable opportunity to make that statement to the said R. J. Sizer in person; (6) that R. J. Sizer did not absent himself, from March 26, 1900, until April 2,1900, from his home, for the purpose of avoiding defendant, and in order to prevent him from tendering payment for said premises to, and demanding a deed thereof from, R. J. Sizer, in person, under such contract of sale; (7) that on March 26, 1900, and thereafter up to April 2, 1900, *539for the purpose of demanding of said E. J. Sizer a deed of said premises, and of tendering to bim payment therefor, the-defendant did make diligent and reasonable search and inquiry for said E. J. Sizer, and did fail to find him; (9) that, at all times since April 1, 1900, the defendant has held possession of said premises, claiming the right to do so as the-equitable owner thereof, under such contract of sale, and the-tender or tenders of performance thereof on his part which defendant claims to have made. Judgment was thereupon ordered to be entered in favor of the defendant in accordance-with such special verdict. ' From the judgment so entered, the plaintiff brings this appeal.

For the appellant there was a brief by *Duffy & McCrory,.*attorneys, and *J. G. Uardgrove,*of counsel, and oral argument by *J. il. McOrory.*

For the respondent there was a brief by *Swett & Eche,*and oral argument by *H. E. Swett.*

Cassoday, O. J.

It is conceded that the lease was extended, as therein provided, to April 1, 1900. By the terms of the optional contract therein contained, the lessor, E. J. Sizer, thereby agreed that in case the defendant “should . . . wish to buy” the premises, at any time during the period of the lease, or the extension thereof, for $3,000, he would sell and deliver the same to him, free and clear of all debts and taxes, for the aforesaid price of $3,000 cash.

The first, eighth, tenth, and eleventh findings of the jury were made by the direction of the court, and the consent of counsel, and are undisputed. The other findings of the jury are amply supported by the evidence. From these findings it appears that, eight days prior to the termination of the lease, the defendant notified E. J. Sizer, the lessor, that he had elected to purchase the premises pursuant to the terms of the contract of sale contained in the lease; that the defendant at that time, and at all times since, was able, ready, and *540willing to receive a conveyance of the premises, and to make payment therefor as prescribed in the contract; that March 26, 1900, and thereafter np to April 2, 1900, for the purpose <of demanding of R. J. Sizer a deed ©f the premises, and tendering to him payment therefor, the defendant did make diligent and reasonable search and inquiry for R. J. Sizer, and failed to find him; that March 30, 1900, the defendant went to the place of abode of R. *J.*Sizer in his absence, and made demand for a deed of the premises, and tendered payment therefor, as alleged in the answer; that April 6, 1900, the defendant informed R. J. Sizer that he was ready to accept a deed of the premises, and to pay the agreed price therefor; that that was the first reasonable opportunity for doing so to him in person; and that April 19, 1900, a complete tender of the price, and demand for a deed, were made by the defendant, and refused by R. J. Sizer, as found by the direction of the court and the consent of counsel. Thus it appears that prior to the termination of the lease the defendant informed R. J. Sizer that he wished to buy the premises and pay the agreed price; that he was able, ready, and willing to pay the price and receive the conveyance. True, he was, by reason of the absence of R. *J.*Sizer, precluded from making an actual tender and demand until a few days after the expiration of the lease. But the agreement only required the defendant to notify R. J. Sizer that he wished to buy, and pay the price of $3,000 cash, to make it binding. *Mueller v.*Norlman, 116 Wis. 468, 93 N. W. 538; *Peterson v. Chase,*115 Wis. 239, 91 N. W. 687. One having an option in writing for the purchase of land has an interest therein. *Telford v. Frost,*76 Wis. 172, 44 N. W. 835; *Wall v. M., St. P. & S. Ste. Marie R. Co.*86 Wis. 48, 56 N. W. 367.

> “An option is, in a sense, a continuing offer of a contract; and, if the offeree decides to exercise his right to demand the conveyance or other act contemplated, he must signify that fact to the offerer.” 21 Am. & Eng. Ency. of Law (2d ed.) ■930.

*541Suck acceptance may be verbally given, as was done in the-case at bar. Id. Counsel for tke plaintiff invokes tke well-known rule tkat a tenant is estopped fr'om denying kis landlord’s title. Tkat rule is based upon tke theory “tkat tke title of tke lessee is in fact tke title of tke lessor. He comes in and kolds by virtue of it, and rests upon it to maintain and justify kis position.” 11 Am. & Eng. Ency. of Law (2d ed.) 443. So this court held at an early day:

> “A tenant cannot dispute tke title of kis landlord, nor during kis term buy in an *adverse*outstanding title to that of his-landlord under whom ke kolds.” *Tondro v.*Cushman, 5 Wis. 219.

This court has also held:

> “Tke grantee in a deed is not estopped by kis acceptance thereof from showing tkat since ke went into possession the-supposed title of kis grantor has been devested by a paramount lien and transferred to another, and tkat ke is rightfully in possession under suck other.” *Moore v. Smead,*89 Wis. 558, 62 N. W. 426.

So it has been held in Illinois:

> “As a- general proposition, a tenant cannot dispute kis landlord’s title, but ke may show it has terminated either by its-own limitation or by kis own conveyance.” *St. John v. Quitzow,*72 Ill. 334.

So it has been held in Massachusetts:

> “A tenant at will is not estopped to - deny that, since kis-own entry into possession, kis landlord’s title has been determined by tke act of tke landlord.” *Emmes v.*Feeley, 132 Mass. 346.

To tke same effect, *Lamson v. Clarkson,*113 Mass. 348.

So it has been held in Maine:

> “A tenant is not estopped to deny kis landlord’s title after tkat title, under which kis own tenancy began, has ended, and tke estate has become *vested in the tenant himself.” Ryder v. Mansell,*66 Me. 167.

Here, by reason of tke agreement contained in tke lease,. *542.■and tbe election of tbe defendant, tbe conventional relation of landlord and tenant was superseded and terminated by a •contract for tbe purchase of the premises by tbe defendant •from tbe lessor.

2. Counsel for tbe plaintiff contends that, in order to make •the optional agreement effectual, tbe defendant should have made bis tender to Susan H. Sizbr, to whom R. J. Sizer conveyed tbe permises after making tbe lease. She took by quit-•elaim deed, with full knowledge of all tbe facts, and made no agreement herself. But, as indicated, tbe covenants contained in tbe lease were therein made expressly binding upon tbe •parties thereto, and their respective heirs, executors, administrators, and assigns. R. *J.*Sizer was not released, however, from bis covenants and obligations to perform tbe contract by conveying to bis mother. lie continued to collect tbe rents after be conveyed to bis mother. When tbe defendant, prior ■to tbe expiration of,tbe lease, expressed to R. J. Sizer a wish to buy the premises at tbe price named, be and bis mother both became bound to make conveyance. Tbe making of tbe -conveyance and tbe payment of tbe price were to be concurrent acts. *Seeley v. Howard,*13 Wis. 336; *Davidson v. Van Pelt,*15 Wis. 341; *McWilliams v. Brookens,*39 Wis. 334; *Williamson v. Neves,*94 Wis. 656, 69 N. W. 806. Under tbe agreement, tbe price was to be paid to R. J. Sizer by tbe defendant upon conveyance being made to him, whereby be would get tbe title to tbe premises “free and clear of all debts and taxes.”

3. There was no error in admitting testimony as to tbe de-fendant’s ability and readiness to pay tbe purchase price, and that tbe defendant bad acted on tbe assumption that tbe con- - tract was binding.

4. There are a number of exceptions to tbe charge. Tbe • one on which counsel seems to place most reliance is that tbe court read to tbe jury portions of tbe answer in presenting Tbe issues to tbe jury. Tbe charge seems to be fair through*543■out. Neither that exception to the charge, nor any other, has any merit. We find no error in the record.

*By the Gourk*— The judgment of the circuit court is affirmed.