A-29460, DECEMBER 21, 1929, 9 COMP. GEN. 259

A-29460: Dec 21, 1929

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

SUBSEQUENT TO PURCHASE OF LEASED PREMISES WHERE THE UNITED STATES IS IN POSSESSION OF LAND UNDER A LEASE AND AT THE EXPIRATION THEREOF PURCHASES THE LAND. A DEED IS EXECUTED AND DELIVERED TO THE UNITED STATES THEREFOR. THE RELATION OF THE PARTIES IS THEREUPON CHANGED FROM THAT OF LANDLORD AND TENANT TO THAT OF VENDOR AND VENDEE. WHEREIN WAS ALLOWED ONLY $343.65 ON THE CLAIM OF W. THE LEASE WAS FORMALLY RENEWED ANNUALLY FOR LIKE RENTAL TO AND INCLUDING JUNE 30. THAT FUNDS FOR SUCH PURCHASE WERE NOT AVAILABLE UNTIL JULY 1. THE PREPARED PROPOSAL CONTAINED A PROVISION THAT IF FOR ANY REASON DELIVERY OF TITLE TO THE PROPERTY WAS DELAYED BEYOND JULY 1. THE UNITED STATES WAS AUTHORIZED TO USE AND OCCUPY THE LAND WITHOUT COST UNTIL SUCH TIME AS TITLE SATISFACTORY TO THE ATTORNEY GENERAL WAS CONVEYED TO THE GOVERNMENT.

A-29460, DECEMBER 21, 1929, 9 COMP. GEN. 259

RENT - PAYMENT OF, SUBSEQUENT TO PURCHASE OF LEASED PREMISES WHERE THE UNITED STATES IS IN POSSESSION OF LAND UNDER A LEASE AND AT THE EXPIRATION THEREOF PURCHASES THE LAND, AND A DEED IS EXECUTED AND DELIVERED TO THE UNITED STATES THEREFOR, THE RELATION OF THE PARTIES IS THEREUPON CHANGED FROM THAT OF LANDLORD AND TENANT TO THAT OF VENDOR AND VENDEE, AND NO IMPLIED CONTRACT TO PAY RENT FOR THE USE AND OCCUPANCY OF THE LAND DURING THE TIME BETWEEN THE EXECUTION AND DELIVERY OF THE DEED AND THE FINAL CONSUMMATION OF THE PURCHASE, BY PAYMENT OF THE PURCHASE MONEY, CAN ARISE.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 21, 1929:

REQUEST HAS BEEN MADE FOR REVIEW OF SETTLEMENT NO. 0188075, DATED SEPTEMBER 11, 1928, WHEREIN WAS ALLOWED ONLY $343.65 ON THE CLAIM OF W. G. YOUNG, IN THE SUM OF $1,051.90, FOR USE AND OCCUPANCY AS AN ARMY CAMP SITE OF 434.2 ACRES OF LAND IN PRESIDIO COUNTY, TEX., FROM JULY 1, 1927, TO DECEMBER 7, 1927.

THE FACTS APPEAR TO BE AS FOLLOWS:

ON JULY 1, 1919, THE UNITED STATES LEASED FROM THE CLAIMANT 434.2 ACRES OF LAND IN PRESIDIO COUNTY, TEX., FOR MILITARY PURPOSES UPON AN ANNUAL RENTAL BASIS OF $2,412, PAYABLE MONTHLY AT THE RATE OF $201. THE LEASE WAS FORMALLY RENEWED ANNUALLY FOR LIKE RENTAL TO AND INCLUDING JUNE 30, 1927.

IT APPEARS THAT IN MAY, 1927, THE CLAIMANT GAVE THE GOVERNMENT AN OPTION TO PURCHASE SAID LAND FOR THE SUM OF $25,800, BUT THAT FUNDS FOR SUCH PURCHASE WERE NOT AVAILABLE UNTIL JULY 1, 1927. ON APRIL 30, 1927, THE GOVERNMENT FORWARDED TO THE LESSOR FOR HIS SIGNATURE A PREPARED PROPOSAL IN WRITING TO SELL SAID LAND TO THE UNITED STATES FOR THE SUM OF $25,800. THE PREPARED PROPOSAL CONTAINED A PROVISION THAT IF FOR ANY REASON DELIVERY OF TITLE TO THE PROPERTY WAS DELAYED BEYOND JULY 1, 1927, THE UNITED STATES WAS AUTHORIZED TO USE AND OCCUPY THE LAND WITHOUT COST UNTIL SUCH TIME AS TITLE SATISFACTORY TO THE ATTORNEY GENERAL WAS CONVEYED TO THE GOVERNMENT. THIS PROVISION WAS DELETED BY THE LESSOR PRIOR TO SIGNING AND RETURNING THE PROPOSAL TO THE GOVERNMENT ON MAY 20,1927, WITH THE ADVICE THAT HE THOUGHT SUCH PROVISION UNFAIR BECAUSE IT MIGHT PUT HIM IN THE POSITION OF PERMITTING THE GOVERNMENT TO USE THE LAND FREE OF CHARGE IF FOR ANY REASON THE SALE SHOULD BE POSTPONED ANY LENGTH OF TIME. ACCEPTANCE OF THIS WRITTEN PROPOSAL WITH THE DELETED PROVISO WAS NEVER EXECUTED ON BEHALF OF THE UNITED STATES NOR WAS ANY AGREEMENT MADE TO PAY RENT AFTER JUNE 30, 1927, DATE OF TERMINATION OF THE LEASE.

THE GOVERNMENT CONTINUED TO USE AND OCCUPY THE LAND AFTER JUNE 30, 1927, WITHOUT PAYING RENT THEREFOR, AND BY A WARRANTY DEED DATED AUGUST 23, 1927, THE CLAIMANT CONVEYED TITLE TO SAID LAND TO THE UNITED STATES. DELIVERY OF THE DEED WAS MADE TO THE GOVERNMENT ON OR ABOUT THE SAME DATE, AND THEREUPON ALL TITLE PAPERS WERE REFERRED TO THE ATTORNEY GENERAL FOR EXAMINATION, AS PROVIDED BY SECTION 355, REVISED STATUTES. AFTER CONSIDERABLE TIME WAS CONSUMED IN HAVING THE VENDOR CLEAR THE TITLE THROUGH THE PAYMENT OF TAXES, OBTAINING RECEIPT THEREFOR, ETC., THE ATTORNEY GENERAL, ON NOVEMBER 16, 1927, APPROVED THE TITLE, AND ON NOVEMBER 30, 1927, A CHECK WAS FORWARDED TO THE CLAIMANT IN THE AMOUNT OF $25,800, COVERING THE PURCHASE PRICE OF SAID LAND.

THE CLAIMANT CONTENDS THAT HE IS ENTITLED TO RENTAL AT THE RATE OF $201 PER MONTH FOR THE USE AND OCCUPANCY OF SAID LAND BY THE UNITED STATES DURING THE PERIOD FROM JULY 1, 1927, TO DECEMBER 7, 1927, THE DATE THE CHECK WOULD HAVE BEEN DELIVERED HAD HE BEEN AT HIS PLACE OF BUSINESS. THE SETTLEMENT OF SEPTEMBER 11, 1928, ALLOWED THE RENT FROM JULY 1 TO AND INCLUDING AUGUST 22, 1927, TITLE TO THE PROPERTY HAVING PASSED TO THE UNITED STATES AUGUST 23, 1927.

IT MAY BE SAID TO BE A SETTLED PRINCIPLE OF LAW THAT WHILE A CONTRACT OR DEED MAY RESERVE TO A VENDOR OF REALTY A RIGHT OF POSSESSION AFTER THE CONVEYANCE, THE PRESUMPTION IS THAT THE RIGHT OF POSSESSION FOLLOWS THE DEED, AND THAT, IN THE ABSENCE OF ANY PROVISION TO THE CONTRARY, AS SOON AS THERE HAS BEEN A CONVEYANCE TO THE PURCHASER HE IS ENTITLED TO POSSESSION. SEE 39 CYC. 1622, AND CASES CITED.

IN VIEW OF THE VENDOR'S INDICATED REFUSAL IN THIS CASE TO ALLOW THE UNITED STATES TO REMAIN IN OCCUPANCY OF THE LAND RENT FREE AFTER THE TERMINATION OF THE LEASE, PENDING THE CONCLUSION OF THE PURCHASE ARRANGEMENTS, THE GOVERNMENT MAY BE CONSIDERED TO HAVE HELD OVER TO THE DATE OF CONVEYANCE AS A TENANT AT WILL UNDER AN IMPLIED AGREEMENT TO PAY FOR THE USE AND OCCUPATION OF THE LAND. HOWEVER, UPON CONVEYANCE OF TITLE TO THE UNITED STATES ON AUGUST 23, 1927, THE GOVERNMENT BECAME ENTITLED TO POSSESSION IN ITS OWN RIGHT, THERE HAVING BEEN NO AGREEMENT, EXPRESS OR IMPLIED, OR RESERVATION IN THE DEED, TO THE CONTRARY. CONSEQUENTLY, FROM THAT DATE THERE WAS NO IMPLIED RELATIONSHIP OF LANDLORD AND TENANT TO SUPPORT A CLAIM FOR USE AND OCCUPATION. SEE 14 COMP. DEC. 312; CARPENTER V. UNITED STATES, 17 WALL. 489. AS THE ORIGINAL LEASE IN THIS CASE PROVIDED THAT RENTAL FOR FRACTIONAL PART OF A MONTH SHOULD BE PRO RATA OF THE MONTHLY RATE, THE RIGHT TO RENTAL FOR THE FRACTIONAL PART (22 DAYS) OF THE MONTH OF AUGUST, 1927, WILL NOT BE QUESTIONED. COMPARE CUMMING ET AL. V. UNITED STATES, 57 CT.CLS. 551.

IT FOLLOWS THAT THE DISALLOWANCE OF THE CLAIM FOR RENT AFTER AUGUST 22, 1927, WAS CORRECT. ACCORDINGLY, UPON REVIEW, THE SETTLEMENT MUST BE AND IS SUSTAINED.