, 1892-04-09
FOR RENT DUE.
JUDGMENT In A PIERCE COUNTY
CASE REVERSED.
Important Points i'm the Lease of
Property i'm the City Of Tacoma.
The Smpreme CoMrt,s Onimtom.

f[otice-All decisions of the supreme
court will appear in THE DAILY AMI
WEEKLY TR1BuNE.l
Alexander Isaacs, Samuel lsaacs and Nor
ris Isaacs, respondents, VS.. S. j. Holland
and Samuel S. Loeb, appellants.
No. 412, filed March 16, 1892-Respond
ents 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 certain
lease of lot and bnilding thereon, in the
city of Tacoma. The lease was executed
in due form on the 9th day Of July, 1889, to
take effect on the 1st day Of fSeptember fol
lowing, and to continue for the period OF
five years. The defendants went into pos
session of the premises hereunder and
continued to hold the same, and spaid 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 speci-
fed the community property of the plain
tiffs, 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
promises stated no action could be main
tanned 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 re-
gard them as applicable. In the first case
suit was brought to compel the husband to
execute a lease Ofcommnnity lands in COM
pliance with an agreement made by him.
The wife was not party to the agreement,
and the court refused to compel the execu-
ton 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. 1t
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 fthe 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 ten
dered back with interest, and it was decided
that the plaintiff was not entitledto the re-
lief demanded.
In the case at bar the wives of the plain
tltts 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 fol-
lowing covenant:
''And the said parties of the first part
covenant that the said parties of the sec
ond 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 outsted we see no
good reason why they could not have
maintained an action for damages upon
the breach of the covenant for quiet en-
jOyment. 1t does not appear that they
knew the plaintiffs were married men, or
kneWIthe property was community property
when the lease was executed, so that it
could be contended they stood in the posi-
tion of wiIful 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 de-
manding 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 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 it refused him to then
abandon the premises if he has taken pos
session, and not be held bound to pay rent
after such demand, refusal and surrender.
1t 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 perment location considerable time
may be required in wlrIch to establish a
business and make it profitable, and at the
commencement and for more or less time
thereafter it may we'll be a source Of ex-
pense 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 inn
portant factor in arriving at this result,
and certainly one who has leased premises
under these circumstances for long period
of time not knowing the facts so that he
Wrongdoer, should not be compelled to
continue therein and lay out money at his
peril, or at a loss, with the prospect of hav-
ing his business sacrificed after establish
ing it at the expense of time and money,
by being elected from the premises by the
owners, or that after demand for valid
lease, and a refusal to give one, that he
should be compelled to remain in posses
sion until notified to quit or proceedings
should be instituted to eject him. An es-
topel 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 ten
ant knowing the facts should continue to
occupy the premises he could not set up
the invalidity of the lease as defense to
an action for the recovery of the rent
stipulated, and this brings US to the con-
sideration of further question involved
in the determination of this case. The
answer contained the following allegation: /:
'These defendants allege that they oc-
cupied the said premises from month to
month and paid the rental demanded each
month therefor until the month ofAugust,
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 re-
quested these defendants to continue to oc-
cupy the said premises from month to
month at rental of S40o per month,
which these defendants refused to do, but
offered to pay the sum of $500 per month
rental for the said month Of August, and
for each month Of the time they should oc-
cupy said premises, which was refused on
the part of said plaintiffs; thereafter, on
the oath day of said month of August
these defendants surrendered to said plain
tiffs the said premises; whereupon the said
plaintiffs requested these defendants to oc-