Bowman v. Foot

29 Conn. 331

• Court: Supreme Court of Connecticut
• Decided: September 15, 1860
• Status: Published

Opinion

Storrs, C. J.

We do not find it necessary to decide whether, by the acceptance of rent which fell due before the alleged determination of the lease, the lessor waived his right to repossess himself of his estate. The current of authority is against such a doctrine, although the opposite view of the law is not wholly unsupported. Coon v. Brickett, 2 N. Hamp., 163. It is generally maintained that an entry for condition broken ought not at all to affect the right to receive payment of a pre-existing debt, or the acceptance of payment of such a debt to affect the right of entry.

Nor do we determine whether the effect of such an acceptance can be qualified by a landlord’s declaration, at the time of the acceptance, that he does not thereby mean to waive any right. High authority sanctions the idea that the acceptance of rent accruing after condition broken, is in law a waiver of the forfeiture, and not evidence of such waiver merely. It has also been said by judges of great eminence, that the right of the party who pays money to control its application, constrains the lessor who receives rent, tendered as such, to waive his claim of forfeiture.

The only point which we propose to settle as the law of the present case is, that, upon the facts stated, there was no legal determination of the lessee’s estate.

Our statute of summary process recognizes no other termination of leases than such as is effected by force of the contract itself. It supersedes none of the common-Io - remedies of the landlord, except in respect of the notice to quit and the form of procedure by action. It follows that the question whether the tenant’s rights have ceased, must be settled according to a common-law interpretation of the instrument of demise. In some states, precise legal consequences are ainexed by statute to the non-payment of rent, and the lessee is arbitrarily divested of his estate. .. Oh/ statutes contain no such provision. ./^

first day of April, 1861. It contained a covenant of quiet mjoyment for the fa term, with a qualification thus ex-quent part oí/1-qe instrument is a proviso of the following tenor: — “ Provided, however, that if the lessee neglects to pay The lease in evidence war; for three years, ending on the pressed: — “he [thelr^rclj keeping all the covenants on his part.” One of th ql covenants was for the payment of a quarterly rent upoj/certain quarter-days named. In a subsethe rent, &c., then this lease shall thereupon, by virtue of this express stipulation therein, expire and terminate, and the party of the first part may, at any time thereafter, re-enter said premises, and the same have and possess as of his former estate.” Again, the parties agree that so long as the lessee’s occupation continues, (referring to a holding over by consent,) the written agreement shall be evidence “ of the conditions, stipulations and agreements under which he occupies.” It will be observed that the draughtsman of the contract designs to make use of technical language; and we have, in the first place, the clearest expression of a condition annexed to the covenant for the tenant’s peaceable enjoyment of the estate. Next, we have the correct commencement of a condition — “ provided however” — in the very stipulation which is said to terminate the lease, and we have, at the close of the stipulation, a re-entry clause — the apt formula to indicate how a forfeiture is to be enforced. Best, C. J., in Willson v. Phillips, 2 Bing., 13. Last of all, we have an explicit reference to the “conditions” of the instrument by that very name. It was the clear intent of the parties, whatever they may have supposed to.be the legal consequences in detail of such a stipulation, to.attach to the demise a condition for the lessor’s benefit, upon' the breach of which he was authorized to compel the tenant to submit to a forfeiture of his tenancy.

The legal interpretation of the instrument agrees with thi's manifest intent. ' There is no peculiar significance to thé words “ shall expire and terminate.” They mean just as much, and just as little, as would the more common phrase, “ shall become void,’- 'if ingested at the same place. Indeed it appears that both terms were"'Bmployed together in a lease, the construction of which was the subject of determination in the case of Jackson v. Harrison, 17 Johns., 66. It was there provided that in case the rent should\not be paid “it should be lawful for the lessor to re-enter,” &c\ and that “ the lease and estate thereby granted should cease, determine and become uttei’ly void, if the lessor should elect so consider it.” It is well understood that such expressions as thfege in leases for years do not designate the non-payment of rentlas an evexit, like a death or a marriage, at the date of which an estate shall cease at all events. If so, it would be in the power of the tenant, whenever his leasehold property became unprofitable or onerous, to relieve himself, at any pay-day, of his duty to retain it, by simply violating his own covenants. Such a construction would be a plain perversion of the intent of the parties. Accordingly, such stipulations are now universally taken to be for the advantage of the landlord. “Yoid” means “ voidable at his election.” Jones v. Carter, 15 Mees. & Wels., 718. “Expire and terminate” is also an elliptical phrase, meaning “expire and terminate at the lessor’s option.” This principle of construction leaves us nothing to do with a distinction, which is said to prevail between freehold interests and leases for years, requiring in one case, and not requiring in the other, an entry or claim to divest an estate wholly void by the breach of a condition. In cases like the present, the estate is not wholly void by reason of a breach. Its avoidance is contingent upon the acts of the reversioner. Compare Shep. Touch., pages 139 and 184. See also Doe v. Bancks, 4 B. & Ald., 401. To ascertain the law of the case in hand, we must fill up the ellipsis. The lease is to expire and terminate after non-payment, at the option of the lessor, who may then re-enter and annul the tenancy.

This rendering of the contract makes the duration of the lease contingent on the exercise by the lessor of his right to terminate it. To denote how this is to be done, the instrument, fairly read, implies that a re-entry shall take place ; the usual technical mode prescribed in such contracts, indicating, in the case of estates less than freehold, not necessarily a literal entry, but some proceeding that should in a significant and decisive manner declare the forfeiture of the lease and assert the landlord’s rights.

If a tenant’s right is thus voidable only, the option to avoid must be exercised under the contract and according to legal usage. The re-entry clause at all events creates a necessity for some positive act of the landlord to determine his tenant’s estate. In construing a lease, which authorized the lessor, upon the lessee’s neglect to perform his covenants, to enter without further demand and notice and to dispossess the latter, the supreme court of Massachusetts held that, inasmuch as a condition and not a limitation was created by the words employed, the estate of the tenant was not avoided by the neglect and could only be terminated by re-entry. Fifty Associates v. Howland, 11 Met., 99. Since the present case was decided, we have learned that this doctrine was involved in a decision of the Queen’s Bench, (Bishop v. Trustees of Bedford Charity, 28 L. Jour., 215,) which was afterwards reviewed in the Exchequer Chamber. The doctrine itself does not appear to have been disputed. The defendants, owners of certain premises, were charged with being also in possession of them, and therefore liable for an injury suffered through their negligent condition. They had been leased for thirty years, subject to a right of re-entry for the non-payment of rent. The lessee failed to pay, went into bankruptcy, and left the occupancy of the premises to his weekly lodgers, who, as such, had of course no estate in them. From these persons the defendants, before the accident, had collected rent; and, after it, by a decree of the court of insolvency, obtained a surrender of the lease itself. To establish possession in the defendants, the judges of the Exchequer Chamber held that it must appear that they had by re-entry avoided their tenant’s lease; that the receipt of rent from the weekly lodgers was no proof of re-entry, as it was consistent with the continued existence of the lessee’s tenancy; and that as no demand was proved, the defendants had not asserted in fact their rights under the re-entry clause, and therefore could not be said to be in possession of their property at the time of the injury.

Where a lease is thus voidable, the landlord’s option to avoid it should be exercised at the proper point of time and in the proper place; and above all, should be brought home to the tenant’s knowledge through some unequivocal act, in order to certify to him that he is absolved from the further performance of a lessee’s duties. “ Where,” to quote Baron Parke, “ the terms of a lease provide that it shall be avoided by re-entry, either in the case of a freehold lease or a chattel interest, an entry, or what is tantamount thereto, is indi: ' pensable.”

Assuming then that it devolves on the lessor to take active measures to enforce his right of avoidance, we can not doubt that no such forfeiture should be suffered, as for a breach of duty, unless the performance of the duty is first demanded or requested. This principle is illustrated in a striking manner by the case of Merrifield v. Cobleigh, 4 Cush., 182, where the controversy related to a freehold estate. “ Whenever,” so ran the covenant, “ the grantee shall neglect or refuse to support” a certain fence, “ this deed shall be void.” The court held that, until there was a demand upon the grantee to repair the decayed fence, there was no breach of the condition. Yet literally, at the point of time when the grantee passively neglected that duty, his title failed. In the case before us no demand was made for the rent. The conversation of April 1st, 1859, however it was or ought to have been understood, is not claimed to have amounted, even by implication, to such a demand.

To prevent future litigation and to enable parties to make contracts adapted to the view which we take of the law, we go a step beyond the requirements of the case to speak of the formalities necessary to terminate a lease voidable on the nonpayment of rent. We confess that we know of no new rules with which to instruct our judgment in this matter, and naturally adhere to the settled doctrines of the common law.

The case of Jackson v. Harrison was decided by a learned court, and has not been overruled by any of the higher tribunals of the state of New York. The lease in question was for seven years, and provided, as has been stated, for an avoidance and re-entry upon non-payment of rent. The court held that an entry was essential to the forfeiture claimed, and that none could be made without showing a demand of the rent due, upon the last day of payment, on the premises, and at a convenient hour before sunset. “ The plaintiff,” says YanNess, J., “ equally fails in showing a right of entry by reason that the defendant did not pay the United States tax, because the indispensably necessary step of making a demand of the within the period required by law in order to create forfeiture, was not taken.” This decision seems to be a true exposition of the common law.

A late New Hampshire case, McQuesten v. Morgan, 34 N. Hamp., 400, in its result accords with our present conclusion, and involves facts of the same general character.

There is error in the proceedings of the magistrate and we advise that his judgment be reversed.

In this opinion Hinman, J., concurred.

Ellsworth and Sanford Js., were of opinion that our statutes respecting leases had done away with the technical rules of the common law as to getting possession of leased premises, and dissented from the opinion of the Chief Justice.

Judgment reversed.