BRICKELL, J.
A lessee of premises destroyed, during the term, by inevitable accident, the violence of nature, or the act of a public enemy, has no relief against an express covenant or promise to pay rent, either at law or in equity, unless he protects himself by a stipulation in the lease, or the landlord covenants to rebuild. The reason of the rule, usually assigned, is, that the lessee by his owrn contract creates the charge upon himself, and, no fault being imputable to the landlord, he should be compelled to bear it, as he could, if he had chosen, have relieved himself by a stipulation for the cessation of rent in the event of such destruction. Considerations of public policy seem, also, to have entered into the adoption of the rule. Such destruction may result from the carelessness of the lessee, and it may not be possible for the lessor to offer evidence of it. Holding the tenant to liability for rent, removes temptation to negligence, and keeps alive the diligence he should observe in protecting and preserving the premises. 3 Kent, 603; Taylor’s Landlord & Tenant, § 377. A limitation of this rule is, that the destruction must not be of the entire premises leased. There must be something of the subject-matter of the lease remaining. Its value may be diminished; it may be incapable of rendering to the tenant the benefit he expected to derive from its use and occupation. The tenant is, nevertheless, bound to pay the rent, so long as the thing [534]*534demised is capable of holding under the lease — so long as the estate of the landlord, out of which the term is carved, remains. But, if the estate is gone, and the subject-matter or thing leased no longer exists, the liability of the tenant for rent ceases. For the rent is a certain profit, issuing out of lands and tenements corporeal, in compensation for their use and occupation. When the land or tenement ceases to exist, the rent, which issues out of, and is but an incident to it, of necessity must cease. Illustrations of this limitation, to which elementary writers and judicial decisions refer, are found in 3 Viner’s Abr. 13, tit. “ Apportionment,” and are quoted at large in McMillan v. Solomon, 42 Ala. 356. The lease of rooms or apartments in a house, in a town or city, is another illustration of the limitation. If these, during the term, are totally destroyed, without fault on the part of the tenant, the destruction dissolves the tenancy, and the rent is apportioned. McMillan v. Solomon, supra; Graves v. Berdan, 29 Barb. 100; Kerr v. Merchants’ Exchange, 3 Edw. Ch. 315; Winton v. Cornish, 5 Ohio, 477.
In this case, the rent was stipulated to be paid, and was paid, in advance. The destruction of the leased premises by fire, as it would not have absolved the tenant from liability for rent payable in the future, could not, in the absence of a stipulation in the lease, have entitled him to a restitution of the rent paid, or any part thereof. Cross v. Button, 4 Wisc. 468. The lease, however, contains this stipulation, “ And it is agreed that, in case of the destruction by fire of the premises herein leased, before the first day of November, 1869, that the party of the first part shall refund to the party of the second part, at the rate of two hundred dollars per month, for the unexpired term to first of November, 1869.” The premises were partially destroyed in July, 1869, and the destruction materially impaired their fitness for a hotel, the use for which they were leased. Of the buildings not destroyed, the lessee remained in undisturbed possession, and used and occupied them for the entertainment and accommodation of guests and visitors.
We are not required to determine whether there was such an injury by fire of the premises as would give rise to the right of the tenant to a return of the rent paid. This seems not to have been controverted on the trial in the court below. The stipulation in the lease does not contemplate the entire destruction of the premises, as the contingency on which the right to a return of the rent depends; nor yet would a slight or partial injury, capable of speedy repair, not rendering the premises untenantable, or unfit for the use for which they were leased, create the contingency. The injury must render the premises untenantable, and unfit for the uses of the lease. Wall v. [535]*535Hinds, 4 Gray, 256. If this is its extent, the right of the tenant to a return of the rent, under the stipulation in the lease, arises. This stipulation is for the benefit of the tenant. It confers a right, which, in its absence, the law would not raise. And the precise question this record presents is, whether the holding over by the tenant, after a destruction of the premises which would give rise to the right to a return of the rent, but not rendering them valueless, in the absence of an express demand of possession by the lessor, takes away or impairs the right ?
In Crommelin v. Theiss & Co. 31 Ala. 412, it is held, that any interference by the landlord, depriving the tenant of the right of enjoyment of the premises to the full extent secured by the lease, would authorize the tenant to abandon the premises, and exonerate him from liability to pay the rent imposed by the contract. But if, after such interference, the tenant failed within a reasonable time to abandon possession, or did any act inconsistent with the right to abandon, he would thereby waive that right. The principle is, that he has two rights, inconsistent with each other, and the exercise of one is a waiver of the other. The interference of .the landlord was, at the election of the tenant, a dissolution of the tenancy. If the tenancy is dissolved, the right of the tenant to occupy ceases. His subsequent possession, in the absence of all qualifying facts or circumstances, would be tortious. It would not be referred to the relation of landlord and tenant, for that was dissolved, which only could relieve it from the character of a trespass. Therefore, a continuance in possession by the tenant must be regarded as a waiver of the act of the landlord, which would, in the absence of such waiver, have dissolved the tenancy. It would be manifestly unjust, if the tenant could, after such interference, remain in possession, depriving the landlord of the use and occupation, and, when sought to be charged with the liabilities his tenancy imposes, exonerate himself because of such interference. He should act on such interference when it occurs, if he would found a right on it. Then he secures for himself all to which such interference entitles him, and produces no injury to others.
In the case under consideration, an injury to the premises, rendering them untenantable, and unfit for use as a hotel, is the contingency on which the right to a return of the rent depends. When that contingency happens, the tenancy is dissolved. The right of the landlord to rent, in retribution for the use and occupation of his premises, terminates. The right of the tenant to occupy, for which the rent paid, or to be paid, was compensation, ceases. The parties stand to each other, as to the occupancy of the premises, in no other relation than they would have borne if the lease had never been made. [536]*536The tenant does not accept the dissolution of the tenancy. He remains in possession of the premises, deriving all the profit they are capable of yielding. He applies the buildings not injured to the uses for which the entire premises were leased. He deprives the landlord of the use and occupation, and all the benefits to be derived from possession.
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BRICKELL, J.
A lessee of premises destroyed, during the term, by inevitable accident, the violence of nature, or the act of a public enemy, has no relief against an express covenant or promise to pay rent, either at law or in equity, unless he protects himself by a stipulation in the lease, or the landlord covenants to rebuild. The reason of the rule, usually assigned, is, that the lessee by his owrn contract creates the charge upon himself, and, no fault being imputable to the landlord, he should be compelled to bear it, as he could, if he had chosen, have relieved himself by a stipulation for the cessation of rent in the event of such destruction. Considerations of public policy seem, also, to have entered into the adoption of the rule. Such destruction may result from the carelessness of the lessee, and it may not be possible for the lessor to offer evidence of it. Holding the tenant to liability for rent, removes temptation to negligence, and keeps alive the diligence he should observe in protecting and preserving the premises. 3 Kent, 603; Taylor’s Landlord & Tenant, § 377. A limitation of this rule is, that the destruction must not be of the entire premises leased. There must be something of the subject-matter of the lease remaining. Its value may be diminished; it may be incapable of rendering to the tenant the benefit he expected to derive from its use and occupation. The tenant is, nevertheless, bound to pay the rent, so long as the thing [534]*534demised is capable of holding under the lease — so long as the estate of the landlord, out of which the term is carved, remains. But, if the estate is gone, and the subject-matter or thing leased no longer exists, the liability of the tenant for rent ceases. For the rent is a certain profit, issuing out of lands and tenements corporeal, in compensation for their use and occupation. When the land or tenement ceases to exist, the rent, which issues out of, and is but an incident to it, of necessity must cease. Illustrations of this limitation, to which elementary writers and judicial decisions refer, are found in 3 Viner’s Abr. 13, tit. “ Apportionment,” and are quoted at large in McMillan v. Solomon, 42 Ala. 356. The lease of rooms or apartments in a house, in a town or city, is another illustration of the limitation. If these, during the term, are totally destroyed, without fault on the part of the tenant, the destruction dissolves the tenancy, and the rent is apportioned. McMillan v. Solomon, supra; Graves v. Berdan, 29 Barb. 100; Kerr v. Merchants’ Exchange, 3 Edw. Ch. 315; Winton v. Cornish, 5 Ohio, 477.
In this case, the rent was stipulated to be paid, and was paid, in advance. The destruction of the leased premises by fire, as it would not have absolved the tenant from liability for rent payable in the future, could not, in the absence of a stipulation in the lease, have entitled him to a restitution of the rent paid, or any part thereof. Cross v. Button, 4 Wisc. 468. The lease, however, contains this stipulation, “ And it is agreed that, in case of the destruction by fire of the premises herein leased, before the first day of November, 1869, that the party of the first part shall refund to the party of the second part, at the rate of two hundred dollars per month, for the unexpired term to first of November, 1869.” The premises were partially destroyed in July, 1869, and the destruction materially impaired their fitness for a hotel, the use for which they were leased. Of the buildings not destroyed, the lessee remained in undisturbed possession, and used and occupied them for the entertainment and accommodation of guests and visitors.
We are not required to determine whether there was such an injury by fire of the premises as would give rise to the right of the tenant to a return of the rent paid. This seems not to have been controverted on the trial in the court below. The stipulation in the lease does not contemplate the entire destruction of the premises, as the contingency on which the right to a return of the rent depends; nor yet would a slight or partial injury, capable of speedy repair, not rendering the premises untenantable, or unfit for the use for which they were leased, create the contingency. The injury must render the premises untenantable, and unfit for the uses of the lease. Wall v. [535]*535Hinds, 4 Gray, 256. If this is its extent, the right of the tenant to a return of the rent, under the stipulation in the lease, arises. This stipulation is for the benefit of the tenant. It confers a right, which, in its absence, the law would not raise. And the precise question this record presents is, whether the holding over by the tenant, after a destruction of the premises which would give rise to the right to a return of the rent, but not rendering them valueless, in the absence of an express demand of possession by the lessor, takes away or impairs the right ?
In Crommelin v. Theiss & Co. 31 Ala. 412, it is held, that any interference by the landlord, depriving the tenant of the right of enjoyment of the premises to the full extent secured by the lease, would authorize the tenant to abandon the premises, and exonerate him from liability to pay the rent imposed by the contract. But if, after such interference, the tenant failed within a reasonable time to abandon possession, or did any act inconsistent with the right to abandon, he would thereby waive that right. The principle is, that he has two rights, inconsistent with each other, and the exercise of one is a waiver of the other. The interference of .the landlord was, at the election of the tenant, a dissolution of the tenancy. If the tenancy is dissolved, the right of the tenant to occupy ceases. His subsequent possession, in the absence of all qualifying facts or circumstances, would be tortious. It would not be referred to the relation of landlord and tenant, for that was dissolved, which only could relieve it from the character of a trespass. Therefore, a continuance in possession by the tenant must be regarded as a waiver of the act of the landlord, which would, in the absence of such waiver, have dissolved the tenancy. It would be manifestly unjust, if the tenant could, after such interference, remain in possession, depriving the landlord of the use and occupation, and, when sought to be charged with the liabilities his tenancy imposes, exonerate himself because of such interference. He should act on such interference when it occurs, if he would found a right on it. Then he secures for himself all to which such interference entitles him, and produces no injury to others.
In the case under consideration, an injury to the premises, rendering them untenantable, and unfit for use as a hotel, is the contingency on which the right to a return of the rent depends. When that contingency happens, the tenancy is dissolved. The right of the landlord to rent, in retribution for the use and occupation of his premises, terminates. The right of the tenant to occupy, for which the rent paid, or to be paid, was compensation, ceases. The parties stand to each other, as to the occupancy of the premises, in no other relation than they would have borne if the lease had never been made. [536]*536The tenant does not accept the dissolution of the tenancy. He remains in possession of the premises, deriving all the profit they are capable of yielding. He applies the buildings not injured to the uses for which the entire premises were leased. He deprives the landlord of the use and occupation, and all the benefits to be derived from possession. He was a wrongdoer, or a tenant; and we think he must be regarded as waiving, and as intending to waive, his right to dissolve the tenancy, and not as intending to convert himself into a trespasser. We say, the right of the tenant to dissolve the tenancy; for we think it was his right, and his right only, to treat it as dissolved. The stipulation in the lease was for his benefit only, as we have said, creating in him a right which the law would not raise. The landlord could not compel him to the acceptance of the right, instead of the other right given by the lease; the occupation of the premises during the entire term.
A lessee, holding under a lease for a certain time at a fixed rent, and continuing to occupy after the expiration of the term, is presumed to occupy for another term, and under the stipulations and conditions of the lease. Ames v. Schuessler, 14 Ala. 600. The principle on which this rule proceeds, is of very general application. It is, that a personal relation, or a state of things, once established by proof, is presumed to continue, until the contrary is shown, or until facts are proved inconsistent with its continuance. The principle applies to this case. The relation of landlord and tenant is shown by the lease, which is determinable, at the election of the tenant, on the happening of a particular event. The event happens, but the tenant remains in possession, as if it had not happened, using and occupying the premises, as he could not lawfully use and occupy if he was not a tenant. The presumption must be, that the tenancy continues.
A forfeiture of the tenancy, by a breach of the conditions of the lease, is waived by the lessor, if he, with knowledge of the forfeiture, accepts rent subsequently accruing. A notice to quit, given the tenant by the landlord after its expiration, converts- a subsequent holding by the tenant into an adverse possession, on which the landlord may maintain ejectment. If the landlord suffers the tenant to remain in possession, and accepts rent for the occupation subsequent to the notice, he waives the right to treat the tenant’s possession as wrongful, and the relation of landlord and tenant is restored. On the same reasoning, we conclude, that if the premises leased were so materially injured by fire, that the tenant’s right to a return of the rent would arise, yet he waives that right, by continuing to use and occupy the premises as if nothing had occurred to dissolve the tenancy. The waiver arises from the act of the [537]*537tenant. No demand of possession by tbe landlord was necessary. The duty of electing to accept a dissolution, or a continuance of the tenancy, rested on the tenant.
The only error assigned is the charge of the court, that the lessee’s remaining in possession of the premises after the fire, using and occupying them as a hotel, was not a waiver of his right to a return of the rent, under the stipulation in the lease, unless the lessor had demanded possession of the premises. This charge was erroneous, under the view we take of the case. "What are the rights of the parties, if the subsequent possession of the lessee was not under the lease, and a continuance of the tenancy, but under a verbal contract of purchase, which he failed to consummate, is a question we cannot consider as the case is now presented.
The judgment is reversed, and the cause remanded.