Clark v. Jones

1 Denio 516

Opinion

By the Court, Bronson, Ch. J.

Where there is a condition in a lease that upon the neglect of the tenant to pay rent, or for some other default or improper conduct on his part, the lease shall cease and, determine, or shall become null and void, the neglect to pay rent, or the like, does not render the lease absolutely void. It is void as to the estate and interest of the lessee, who has done the wrong. But as to the lessor, the lease is voidable only. He may dispense with the forfeiture, and affirm the continuance of the lease. A distinction in relation to the effect of the forfeiture was formerly taken between leases for lives, and those for terms of years. In the latter case it was said, that on breach of the condition the lease absolutely determined, and could not be again set up by the acceptance of rent, or any other act on the part of the lessor. (Pennant's case, 3 Co. 64; 1 Saund. 287, b. c. note 16; and see Browning v. Beston, Plowd. 131; Chalker v. Chalker, 1 Conn. R. 79; Co. Litt. 215, a.; Adams on Eject. 196-7, ed. of ’40.) But this doctrine no longer prevails. It is now held in relation to leases for years, as well as those for life, that the happening of the cause of forfeiture only renders the lease void as to the lessee. It may be affirmed by the lessor; and then the rights and obligations of both parties will continue without regard to the forfeiture. (Rede v. Farr, 6 Maule & Selw. 121; Arnsby v. Woodward, 6 Barn. & Cress. 519; Doe v. Bancks, 4 Barn. & Ald. 401; Reid v. Parsons, 2 Chit. R. 247

Footnotes

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(a).) It is a far reaching principle of the common law, that a.party shall not be allowed to take advantage of his own wrong; and courts will not so construe the contract as to enable the lessee to put an end to it at pleasure, .by his own improper conduct. And it makes no difference that the defendant here is the surety of the lessee. (Reid v. Parsons, 2 Chit. R. 247.) A surety, like a principal debtor, must answer according to the legal interpretation of his contract.

On the first default for thirty days in paying rent, the lessor might have elected to consider the lease atan end, and have brought ejectment to recover possession. And in that case he would probably have been entitled to the'whole sum of $3300, mentioned in the bond as “ liquidated damages.” Had he made such election, and then sued for a less sum than he was entitled to recover on the bond, the judgment would have been a bar to any further remedy. He could not split up one entire demand, and maintain a second suit, or suggestion, for a portion of it. (Bendernagle v. Cocks, 19 Wend. 207.) But the lessor elected to waive the forfeiture, and affirmed the continuance of the lease. He sued for nothing more than the rent in arrear; and the lessee continued to enjoy the property. As the lease has never ceased or determined, the title to “ liquidated damages” has never arisen, and nothing was. lost by omitting to claim them in the original action.

As the lease was not terminated by the first default, the right to recover the subsequently accruing rent cannot be questioned.

Judgment affirmed.

The same principle has been repeatedly applied between vendor and vendee in construing articles for the sale of land. See Canfield v. Westcott, (5 Cowen, 270,) and note (a) to that case.