G.R. No. 1743. August 12, 1905

On the 1st day of April, 1886, plaintiff and F. L. Roxas entered
into a contract of lease by which the plaintiff, the owner, leased to
Roxas the house No, 17 in Calle Jolo, in Binondo, in this capital. The
first clause of the lease was as follows:

“First. The lease shall begin the first day of July
of the present year and its duration shall be for an indefinite period
but neither of the parties can terminate this agreement without
previous notice of three months to the other party.”

At the end of the written lease is the following clause, signed by the parties:

“Note.—The first clause of this lease is canceled
and substituted by the following: The lease shall begin July 1 of the
present year and its duration shall be for an indefinite period, the
lessee reserving to himself solely the right to abandon the premises on
three months’ notice. F. L. Roxas, V. A. Genato. Seals.”

The lessee went into possession of the property described in the
lease, and continued therein until his death in the month of January,
1897. Since that time the defendants who are his heirs, have been and
are now in possession of the property under said lease.

On the 2d day of August, 1902, the plaintiff gave the defendants
written notice to quit the premises within forty days from the date of
said notice. The defendants refused to do so, and this action was
brought to eject them. It was decided in the court below in favor of
the plaintiff, upon the ground that the contract of lease could be
terminated by the plaintiff upon forty days’ notice. From the judgment
in favor of the plaintiff the defendants have appealed.

We agree with the claim of the appellants that the effect of the
change made by the parties in the first clause of the lease was to make
it a lease at the will of the tenant; in other words, that the tenant
had the right to occupy the property so long as he wished to, upon
complying with the terms of the contract; but we do not agree with
their further claim, that the heirs, devisees, or legatees of the
tenant had and have the right so to occupy it as long as they wish. The
appellants base this further claim upon the proposition that upon the
death of a person all his rights and obligations pass to his heirs,
devisees, or legatees.

This lease was made prior to the Civil Code, and consequently its
effects must be determined by the laws in force here prior to 1889. We
do not think that these laws (The Partidas) provided for a
case of this kind. Law 2, title 8, partida 5, in speaking of the term
of a lease, says that it may be for a definite time, or for the life of
the tenant, or for the life of the owner. Law 19 of the same title, in,
speaking of the two cases in which a purchaser can not eject the
tenant, contains the following statement:

“The second is when the vendor has obtained it, for
his whole life (7), from his grantor, or forever, also the life of his
heirs, devisees, or legatees.”

We do not think that this clause supports the contention of the appellant.

The precise claim made by them is discussed by Escriche, and decided
adversely to them. This author, in his Dictionary of Legislation and
Jurisprudence (vol. 1, p. 719), makes the following statement:

“The lease does not terminate by the death of the
lessor or by that of the lessee, rather it is obligatory in the same
manner upon the heirs of both parties, unless the contrary is provided
in the lease:law No. 7, title 17, book 3, Law of Realty; law No. 2,
title 8, partida 5; decree of Court of Chancery (Cortes) of June 8, 1813. The reason is that todo ome que faze pleyto o postura con otri, que lo faze tambien pot sus herederos, como por si,according to the language of law 11, title 14, partida 3. * * *

“There
is also excepted the lease which is not made for a definite time, but
during the pleasure of the lessor; since it terminates by the death of
the latter. Locatio precative ita facta, quoad is qui loeasset vellet, morte ejus qui locavit tollitur;
1.4, ff. locat. For the same reason if the lease continues indefinitely
during the pleasure of the lessee, it terminates by the death of the
lessee.”

The claim of the appellants finds no support in the Roman law. Law 4 of title 2, book 19 of the Digest, is as follows:

“Locatio precariive rogatio ita facta, quoad is, qui earn locasset dedissetve, vellet, morte eius, qui locavit, tollitur.”

Neither does it find any support in the French law. Article 1742 of the Gode Napoleon is as follows:

“A lease is not rescinded absolutely by the death of the lessor or lessee.”

Troplong, in his commentaries on this code (Le Droit Civil Explique 3d edition, vol. 10, p. 14,) says:

“If the lease is made for an indefinite period and with this clause: at the pleasure of the lessor,
it is evident that the death of the latter terminates all force of this
clause because the concurrence of the good intent, which is necessary
for it to exist, vanishes.

“These are the words with which
President Pavre affirms this decision of Pomponius (2) : ‘Voluntas
finitur morte. Ideoque quod in alicujus voluntatem expressim confertur,
conditionem quamdam injicit, quae volentis personam non egreditur (3).?

“The result would be the same if the lease was made to continue during the pleasure of the lessee(4).”

In Jurisprudence Generale; Repertoirs Methodique et Alphabetique de
Legislation, Dalloz, vol. 30, page 296, the following statement is made:

“89. The agreement contained in a lease, that the lessee shall
continue in possession of the realty at his pleasure is not relatively
a potestative condition in the legal sense of the word, when from the
terms of the contract there results an obligation between the parties,
such as the obligation of the lessee to occupy the place, to furnish
it, to pay rent according to custom, etc. * * * This indefinite clause
should be, in relation to the terms of the contract, interpreted in the
sense that the intention of the lessor was to rent the thing to the
lessee during all the life of the latter. (Paris, July 20, 1840) (1).”

In volume 10 of the supplement (1892) to the work last cited, page 207, the following statement is made:

“303. When the lease is made for a definite period,
it terminates at the expiration of the time fixed (see the explanations
given concerning this matter, Rep. Nos. 527 and following). If it was
agreed by the terms of the clause of the lease that the lessee was to
continue in possession of the premises rented at his pleasure or during
the existence of the property, it should be considered as authorized
for the life of the lessee, except the right of the latter in the first
case, to abandon the premises at his convenience. (See Aubry and Rau,
t. 4, paragraph 369, note 16, p. 498; Guillouard, t 1, No. 408;
Laurent, t. 25, No. 317; Paris, June 4, 1859, aff. Gaibrois, D. P. 59,
2, 116).”

There is nothing decided in this court in the case of Eleizegui vs. The Manila Lawn Tennis Club^[1]
(1 Off. Gaz., 374) which is contrary to the doctrine enunciated in the
foregoing authorities. In that case the lease in question was made
after the Civil Code went into effect in these Islands, and the court
applied to it the provisions of article 1128 of that code. This case,
as has been said before, is not governed by the provisions of the Civil
Code, but by the law existing prior to 1889. Moreover, in that case the
tenant was not a natural person, but an association or corporation, and
the lease provided that the tenant should hold it for all the time the
members of the said club might desire to use it.

We follow the authorities which have been cited, and hold that this
lease terminated at the death of Roxas in 1897. At the time of this
termination the Civil Code was in force, and the rights of the parties
at such termination would be governed by that code. The occupation of
the property by the defendants after the death of their ancestor was by
virtue of the tacit renewal mentioned in article 1566. By the terms of
the original lease the rent was payable monthly, and this being urban
property, article 1581 of the Civil Code is applicable. The defendants
therefore, since 1897 have been and now are in possession merely as
tenants from month to month, and the plaintiff had the right to eject
them at the end of any month, and was entitled to the possession of the
property when this action was brought.

The judgment of the court below is affirmed, with the costs of this
instance against the. appellants. After the expiration of twenty days
judgment will be entered in conformity herewith and the cause will be
returned to the lower court for execution. So ordered.

Arellano, C. J., Mapa, Johnson, and Carson, JJ., concur.
Torres, J., did not sit in this case.

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^[1] 2 Phil. Rep., 309.