Jackson ex dem. Wuldon v. Harrison — 17 Johns. 66

Majority

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*Jackson, ex dem. Wuldon, against Harrison.

Headnote

or t)re premises thereof,' to any re-entry, and of condition, no [iurrelT'hy an midor-ietimg for the whoie term; “ f iff lion are to be ™‘nl. of the part "o? ’ ⅛,® i«r the whole tuJfi¡<i where on« of «fe con-aJj““\he les-Where a lease ior die term of f oiiMhh a ( on-dition that the dionid «IT p'Wi with, the mdonlnre. should pay u wasS. that t,le !essor bad Inter Vr breach of the ⅜ ⅛⅛ á ¡-⅛⅝*' ⅜⅛⅛ the per‘“j!awrT“^ ⅞ create a°forfeiture.

INor can the lessor re-enter. on the ground of a forfeiture, for the non-payment of rent, without showing a demand of the rent due on the last day, of the tenant, on the premises, a convenient time before sunset, &c., or a strict compliance with all the formalities required by the common law his claim being regarded as stricti juris. Proving a demand of the tenant, at his house, on the premises, in the afternoon of the lust day, is not sufficient.

W here, at the bottom of a lease containing a clause of re-entry, for non-performance of the covenants, conditions, the lessee agreed not to make any alterations in the buildings, without the consent of die lessor, this was held to rest merely in covenant, and was not a condition, for a breach of which the lease was to be forfeited.

THIS was an action of ejectment, tried before the late chif i‘justice, at the X t w- York sittings, in Dectmher, HIS.

The plaintiff g.ne in evidence an indenture of lease, made the 1st <>1 Jinii. Hid. between the lessor and the defendant, by which the lessor devised to the defendant a lot of ground, with the buildings thereon, in the city of A'< ic- York, for the term of seven years, from the Ht of Muy. then last past, at the annual rent of ¿50 dollars, payable quarterly ; and paying, also, all taxes, assessments, levies, or impositions whatsoever, which shall or may be as.sessed, levied, or imposed upon, or grow payable out of, or for, the demised premises, or any part thereof, during the term. And it was provided, and agreed that, in case the rent, or any part thereof, should remain due, and unpaid, for twenty days after the same ought to be paid ; or if any taxes, levies, &c. which should be rated or assessed on the premises, and should be behind and unpaid, for the like space of time, after the time the same ought to be paid; or if the lessee, his executors, &c. should, assign over, or otherwise part with, the lease or the premises demised, or any part thereof, to any person oy persons whatsoever, without the consent of the lessor, his heirs or assigns, or his attorney, first had and obtained in writing, under his or their hands and seals ; then, in either of the said cases, it should be lawful for the lessor, his heirs, &c. to re-enter into, and upon, the demised premises, &c., or to distrain, &c. And it was further agreed, that, in cither of the cases above mentioned, if the lessee, his executors, &c. should fail to perform any of the covenants, conditions and provisoes, *contained in the lease, &<j. that then the lease and the estate thereby granted, should cease, determine, and become, utterly void, if the lessor should elect so to consider it. The lessee covenanted to pay the rent, and the taxes, &c. and make all necessary repairs, and to surrender the premises, at the expiration of the term, in good repair ; fire, war, or other inevitable accident, excepted ; with all repairs made thereon during the term. And it was further covenanted and agreed that the lessee should not make any material alteration in the buildings, nor take down any partition or wall, in or about the same, without the consent of the lessor

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his heirs, &c., or his attorney, for that purpose, in writing, first had and obtained.

John Reid, a witness for the plaintiff,

testified, that he was a§ent °* ^*e plaintiff for nearly fixe years, during which time, the defendant never paid the rent punctually; that, in December, 1814, the defendant having neglected to pay the direct tax of the United States, assessed on the premises, they were advertised for sale; and, to prevent a sale, the witness paid the tax, which has never been repaid to him by the defendant; that no rent had been paid since August, 1816; that the witness went to the defendant’s house, the premises in question, on the first and twentieth days of November, 1816, in the afternoon of each of those days, and demanded the quarter’s rent then due ; but the defendant answered, that he could not pay ; that the witness went again to the premises on the first and twentieth days of February, 1817, in the afternoon of each of those days, and demanded the rent, but obtained only promises from the defendant. In February, 1817, part of the house was consumed by fire ; and it was awarded by arbitrators, that the Fire Insurance Company should pay 650 dollars, on account of the damages. The defendant made the repairs, which amounted to 600 dollars; and, on the 14th of May, 1817, he agreed to accept one half of the sum awarded to be paid by the Insurance Company, as a compensation, in full, for the repairs. The witness received the 650 dollars, and tendered the one half of that sum to the defendant, in full for the repairs; but the defendant refused to accept it, and insisted on being paid the whole sum of 600 dollars, for repairs. The witness, afterwards, ^proposed to deduct the amount due for rent from the 325 dollars due to the defendant for repairs, but the defendant refused to limit his claim for that sum, insisting on the full amount of 600 dollars.

It was proved that one Kelly occupied one of the buildings, as an under tenant, for eighteen months, or two years. The witness also proved that, some time previous to August, 1816, the defendant made alterations in the house, by cutting off about eight feet of a stack of chimney, in the lower story, which stood in the partition between the two front rooms of the two tenements, one of which was used as a store, and by putting upright posts under the chimney to support it, and taking down the partition between the rooms, and throwing the whole into one store. This suit was commenced in August term, 1818. It was admitted that the buildings, as now repaired, since the fire, were in a better state than before.

The defendant proved that, before the suit was brought, he offered to the wife of the lessor, (the lessor himseif having been abroad, out of the United States, for more than seven years,) to allow the rent then due, together with a quarter’s rent in advance, to be deducted out of the sum claimed by the defendant, for repairs, if she would pay to the defendant the

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balance of his bill; and that she referred the defendant to her agent, Reid, who refused to agree to the proposal.

A verdict was taken for the plaintiff, subject to the opinion of the court, on a case containing the facts above stated.

Wilson, for the plaintiff.

As to the clause of re-entry by the lessor, there is a difference between a lease for life, and a lease for years. In regard to the former, a breach of the condition renders the lease voidable ; but in the latter case it is void; and, being forfeited, it cannot be set up again, by an acceptance of rent after the breach of the condition, nor by any other act. (Plowden, 133. 1 Sound. 287. n. 16.) Here there has been a breach of the condition : 1. In the non-payment of taxes : 2. By assigning the premises : 3. By non-payment of rent: 4. By alterations in the buildings. So that the lease is forfeited and void. (1 Carnpb. N. P. 20. 1 Maulé ⅜ Selivyn, 297. 1 Leon. 262.)

#But, even if it is considered as a voidable lease, the mere acceptance of rent due, unless accompanied by some other act of the lessor, showing his intent to confirm the lease, does not amount to a waiver of the forfeiture. (Doe, ex dem. Cheney, v. Batten, Coup. Rep. 243.) It must depend on the quo animo, or the intention with which the rent was received.

Drake, contra.

There can be no pretence of maintaining this action under the statute. If it can be supported at all, it must be at common law : and all the niceties required in proceedings by the lessor, must be observed. (Co. Litt. 202. a. 1 Saimd. 287. n. 16.) There must be a demand of the precise rent due, on the precise day it was due and payable, at a convenient time before sunset, upon the land, and at the dwelling-house, if any there be. Leases for years are void, or voidable, according to the terms of the lease. This is a voidable lease ; the terms of it show it to be voidable only. It says, “ if the lessor shall elect so to consider it.” If a voidable lease, and the conditions have been broken, it may be made good by the acts of the lessor. The alleged breaches are, 1. For the non-payment of rent; but the lessor has not entitled himself to the forfeiture. He ought to have demanded the rent on the premises, and have staid there until dark, or sfmset. 2. As to the underletting, it has been settled, that an under lease is no assignment. (2 Wm. Bl. 766. 3 Wils. 234. Doug. 57.) 3. As to the non-payment of the United States’ tax ; the covenant refers to ordinary taxes only, and not to the extraordinary tax laid by Congress.. 4. As to the covenant relative to alterations in the buildings; that is not contained in the body of the lease, but is endorsed upon it. It does not come within the clause of re-entry, but is a separate, independent covenant, for which the lessor has his action for damages, in case it has been broken.

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The court lean strongly against forfeitures of leases, and will examine the conditions strictly, to prevent, if possible, a forfeiture. But, we say, here has been a waiver of the forfeiture, if any existed, by the acceptance of rent, afterwards, *with full notice. (Jenkins v. Church, Cowjj. 483. Goodright v. Davids, Id. 803.)

delivered the opinion of the court. The stipulation in the concluding part of the lease, prohibiting the lessee from making alterations in the buildings, rests in covenant merely, and is not made a condition for the breach of which the estate is forfeited. Nor can the lessor of the plaintiff avoid the lease, because one of the buildings was underlet. The condition in the lease is, that the lessor shall not “ assign over, or otherwise part with, this indenture, or the premises thereby leased, or any part thereof, to any person,” áse. These words must be construed to mean an assignment of the premises, or part of them, for the whole term ; and no forfeiture is incurred by letting for a shorter period ; under-leases not being considered as coming within the terms of the condition, or proviso,^[2] This principle was fully settled, in the case of Crusoe, ex dem. Blencowe, v. Bugby, (3 Wils. 234.) and has been repeatedly sanctioned since, and applied to conditions expressed in stronger terms than in the present case, A lease may be so expressed as to produce a forfeiture for underletting, as well as for assigning the whole term ; but this is not the language of the lease in question.

The plaintiff equally fails in showing a right of re-entry, by reason that the defendant did not pay the United States’ tax, because, the indispensably necessary step of making a demand of the defendant, within the period required by law, in order to create a forfeiture, was not taken.

It remains to be considered, whether the plaintiff is entitled to recover, on the ground that a forfeiture has been incurred by the non-payment of the rent. This is a proceeding at common law, and the claim of the plaintiff being siricii juris, all the niceties required by the common law must be previously complied with, to entitle the reversioner to re-enter. There must be a demand of the rent due on the last day, a convenient time before sunset; and, if there be a house on the land, the demand must be made at the house of the tenant, if he is at home. Several other things *are required to be done, which it is not necessary to detail for the purpose of deciding this case. (Co. Lift. 201. b. 202. a. 1 Sound. 287. n. 16. and the cases there cited.) Orj the 1st and 20th of November, 1817,

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Reid, the agent of the lessor of the plaintiff, went to the house of the defendant, (the lessee,) in the afternoon, and demanded payment of the quarter’s rent, then due ; but the defendant answered, “ he could not pay.” A similar demand was made by the agent, on the 1st and 20th of February, in the same year, of the quarter’s rent then due, and the defendant promised to pay it, but did not. The question is, whether or not, under these circumstances, the right to re-enter accrued. I think it did not. The agent says he made the demand “ in the afternoon now, this may have been immediately after 12 o’clock, and a demand at so early an hour would not be good. “ The last time of demand of the rent,” says Lord Coke, “ is such a convenient time before the sun-setting of the last day of payment, as the money may be numbered and received.” And it is laid down by Hale, Ch. B., that the time of sunset is the time appointed by law to demand rents ; (Duppa v. Mayo, 1 Sound. 287.) and, though this is probably not literally correct, yet it serves to show that the demand necessary to be made, to create a forfeiture, must be immediately preceding sunset, so that the money may be counted, and the necessary receipt or acquittance given, while there is light enough reasonably to do so. This may appear to be unnecessarily rigorous, and a sacrifice of substance to form ; but when it is considered that the consequence of a proceeding of this kind, is the forfeiture of the tenant’s whole interest under the lease, every necessary form which the law has prescribed must be most scrupulously observed. “ The court have always looked nearly into these conditions, covenants, or provisoes.” (Crusoe v. Bugby, 3 Wils. 234. ) It was incumbent on the plaintiff to have shown during what part of the afternoon the demand was made, and that it was towards sunset, or late in the afternoon. The defendant, in a ease of this description, had a right to remain passive, and to avail himself of any defect of proof on the other side, necessary to establish his right to *recover. This point being decisive, the other objections to the plaintiff’s right to recover need not be noticed. The defendant is entitled to judgment,^[2]

Judgment for the defendant.

(a) (a) To entitle the reversioner to re-enter, when there is a condition of reentry reserved for non-payment of rent; the common law requires that there should be a demand of the rent. The demand must be of the precise rent due. It must be made precisely upon the day when the rent is due and payable, and made a convenient timé before sunset. It must be made on the land and at the most notorious place of it; unless a place is appointed where the rent is payable ; in which case the demand must be made at such place. And the demand must be made in fact and so averred in pleading, although there should be no person on the land ready to pay it. 1 Sound. 287. p. 16. See also Remsen v. Conklin, 18 Johns. Rep. 450 . Jackson, ex dem. Lewis, v. Schütz, Ibid. 174. Van Rensellaer v. Andrews, Hid. 431. As to waiver of the rights of forfeiture, see Jackson, ex dem. Norton, v. Sheldon, 5 Cowen, 458. Jackson, ex dem. Blanchard, v. Mien, 3 Cowen, 220.

Footnotes

(a) (a) So, where a lessee for lives covenanted not to sell, dispose of.\ or assign his estate in the demised premises, without the permission of the lessor. &-c. It was held that a lease of part of the premises by the lessee for twenty years, was not a breach of the covenant; and that nothing short of an assignment of his whole estate would produce a forfeiture of the lease. Jackson, ex dem. Stevens, v. Silvernail, 15 Johns. Rep. 278 .