Whitfield, J.,
delivered the opinion of the court.
c £ The general doctrine of the common law unquestionably was that, upon a covenant in a lease of land and buildings for a term of years, to pay rent, the rent could be recovered after a destruction of the buildings leased, by accidental fire. The express contract and promise was not discharged by an act for which the lessee was not responsible. ’ ’ But if the interest of the lessee in a part of the demised premises was destroyed by the act of God or the public enemy, so as to be incapable of any beneficial enjoyment,” the rent was, even at common law, apportioned. Such is the accurate statement of the rule at common law, given by Mr. Justice Brown (Whitaker v. Hawley, 25 Kan., 674), in an opinion of great learning and power, exposing the absurdities of the common law rule on this general subject, especially as applied to the conditions of society existing with us. See, also, Fowler v. Payne, 49 Miss., 32, 79; Jemison v. McDaniel, 25 Miss., 83; Taylor’s Landlord and Tenant, § 375. A universal exception to this rule in this country was established where the lease was of a particular room or apartment in a building, or a building merely, without anji land, in which case the total destruction of the room [29]*29or apartment or building terminated the lease, and released the tenant from the payment of subsequently accruing rent. See the learned and exhaustive note to Porter v. Tull, 33 Pac. Rep., 965; note to McMillan v. Solomon, 94 Am. Dec., 662; 12 Am. & Eng. Enc. L., 742, and authorities cited therein; Lanpher v. Glenn et al., 33 N. W. Rep., 10.
Perhaps the inflexible rigor of the general common law rule is nowhere more strongly put than by Brickell, C. J., in Warren v. Wagner, 75 Ala., 202, where the lease, being of lands and tenements, accompanied with the right of quarrying stone upon the lands during the term, and the injury complained of being the destruction of the limekiln, which, it was conceded, ■constituted the principal consideration for the lease, it was held, on the common law, the lessee was bound for the whole rent. This rule has often been assailed as utterly repugnant to justice and reason, never more forcibly than by Justice Brown in the case of Whitaker v. Hawley, supra, and Chancellor Walworth, in Gates v. Green, 4 Paige, 354; and so harsh was the operation of the rule that, in many states (all of whose statutes are cited in the note to Porter v. Tull, 33 Pac. Rep., 965) statutes have been passed for the purpose of modifying or abrogating it. Many of these statutes — such as those of New York, Ohio, Connecticut, New Jersey and Minnesota — expressly refer to ‘ ‘ lessees or occupants of any building . . . which shall be so destroyed or injured,” etc., providing that in such case the lessee may surrender possession, etc., of the leasehold premises. It is clear that all such statutes relate to buildings, and not to lands; and all the decisions to which we are referred on the proposition that the appellee should have surrendered possession of the premises if he wished to avoid the payment of rent accruing subsequently to the fire, are constructions of such statutes, and are in cases where buildings in cities were destroyed. Such are Roach v. Peterson, 50 N. W., 80, 81, the buildings being in Minneapolis; Lanpher v. Glenn, 33 N. W., 10, 11, the buildings being in St. Paul; Gay v. Davey, 47 [30]*30Ohio St., 396, the buildings being in Cincinnati; Johnson v. Oppenheim, 55 N. Y., 280, the buildings being in New York; Miller v. Benton, 13 Atl. Rep., 678, the buildings being in New Haven, in which last case, the court remark upon the use of the word “tenement” as a word applicable in New Jersey, “ in popular and legal meaning, to parts of a building leased without the land upon which the buildings stand, ’ ’ as well as to land (p. 680).
Our statute, § 2498, code of 1892, upon the construction of which this case depends, has no such limiting words. Its benefits are for ‘‘ a [that is, any] tenant. ’ It contains no provisions for the surrender by the tenant of the leased property. Where the subject-matter of the lease is a building merely, the tenant may justly be required, in the states whose decisions are cited sujora, to ‘ ‘ quit and surrender possession ’ ’ of the demised premises, if he would escape the payment of subsequently accruing rent. But there can be no reason, in the case of a farmer whose cotton crop, in this state, it may be, is opening-in the field, in requiring him, after the expenditure of large sums on an annual crop, to surrender possession of the premises and abandon his crop in order to claim an apportionment of the rent where a ginhouse and machinery, constituting an essential part of the subject-matter of the lease, have been destroyed by fire, if, under our statute, he is otherwise entitled to apportionment. Our condition as an agricultural community is wholly different from that of the people of the manufacturing states, and this difference in conditions was doubtless in the mind of the compiler of the code of 1880, in which this statute first appears, and may well have occasioned the difference in the phraseology — a difference aptly suiting the law to the actual conditions of our people, by far the larger part of whom are agriculturists.
The farm in this case was a large and valuable one, one hundred and sixty bales of cotton being grown thereon in the year 1894. Certainly no building could have been more essential [31]*31to the value of the use of this leased plantation than the steam gin of the kind and value shown in the testimony. The appellee testifies that he would not have rented the place without the gin-house and machinery. The reasonable proportion of the whole rental of $1,150 which the ginhouse and machinery constituted, is shown to have been $350 by two witnesses, and the jury allowed only $275.
The clear tendency of all the modern decisions in our states has been to so modify the rule of the common law as to work out a result just and equitable in the situation. At common law, in the hiring of chattels, though the terms be as absolute and positive as those of a real estate lease, their absolute destruction, without the fault of the hirer, terminated the contract,” and it is well said by Mr. Justice Brown, in the case cited, that the clear tendency of the rulings has been to do away with the common law technicalities concerning real estate, and to bring the rules of the common law more in harmony with those respecting personal property;” and that “the distinctions growing out of the feudal system are disappearing, and this distinction between the lease of real property and the hiring of chattels is one which, sooner or later, will cease to exist.” In the same spirit is Coogan v. Parker, 16 Am. Rep., 679, 680.
We must give this statute a construction suited to the needs of our people, and in giving it the construction which we do, holding that it applies to buildings rural as well as urban, and that in case of the destruction of either kind by fire without the fault of the tenant, there should be an abatement of so much of the rent as was paid for the building, ’ ’ we think we do this. It is, we think, somewhat significant, too, that §§ 2497 and 2498 of the annotated code are placed now in the law relating to landlord and tenant, and immediately succeeding sections furnishing remedies for enforcing agricultural liens.
Free access — add to your briefcase to read the full text and ask questions with AI
Whitfield, J.,
delivered the opinion of the court.
c £ The general doctrine of the common law unquestionably was that, upon a covenant in a lease of land and buildings for a term of years, to pay rent, the rent could be recovered after a destruction of the buildings leased, by accidental fire. The express contract and promise was not discharged by an act for which the lessee was not responsible. ’ ’ But if the interest of the lessee in a part of the demised premises was destroyed by the act of God or the public enemy, so as to be incapable of any beneficial enjoyment,” the rent was, even at common law, apportioned. Such is the accurate statement of the rule at common law, given by Mr. Justice Brown (Whitaker v. Hawley, 25 Kan., 674), in an opinion of great learning and power, exposing the absurdities of the common law rule on this general subject, especially as applied to the conditions of society existing with us. See, also, Fowler v. Payne, 49 Miss., 32, 79; Jemison v. McDaniel, 25 Miss., 83; Taylor’s Landlord and Tenant, § 375. A universal exception to this rule in this country was established where the lease was of a particular room or apartment in a building, or a building merely, without anji land, in which case the total destruction of the room [29]*29or apartment or building terminated the lease, and released the tenant from the payment of subsequently accruing rent. See the learned and exhaustive note to Porter v. Tull, 33 Pac. Rep., 965; note to McMillan v. Solomon, 94 Am. Dec., 662; 12 Am. & Eng. Enc. L., 742, and authorities cited therein; Lanpher v. Glenn et al., 33 N. W. Rep., 10.
Perhaps the inflexible rigor of the general common law rule is nowhere more strongly put than by Brickell, C. J., in Warren v. Wagner, 75 Ala., 202, where the lease, being of lands and tenements, accompanied with the right of quarrying stone upon the lands during the term, and the injury complained of being the destruction of the limekiln, which, it was conceded, ■constituted the principal consideration for the lease, it was held, on the common law, the lessee was bound for the whole rent. This rule has often been assailed as utterly repugnant to justice and reason, never more forcibly than by Justice Brown in the case of Whitaker v. Hawley, supra, and Chancellor Walworth, in Gates v. Green, 4 Paige, 354; and so harsh was the operation of the rule that, in many states (all of whose statutes are cited in the note to Porter v. Tull, 33 Pac. Rep., 965) statutes have been passed for the purpose of modifying or abrogating it. Many of these statutes — such as those of New York, Ohio, Connecticut, New Jersey and Minnesota — expressly refer to ‘ ‘ lessees or occupants of any building . . . which shall be so destroyed or injured,” etc., providing that in such case the lessee may surrender possession, etc., of the leasehold premises. It is clear that all such statutes relate to buildings, and not to lands; and all the decisions to which we are referred on the proposition that the appellee should have surrendered possession of the premises if he wished to avoid the payment of rent accruing subsequently to the fire, are constructions of such statutes, and are in cases where buildings in cities were destroyed. Such are Roach v. Peterson, 50 N. W., 80, 81, the buildings being in Minneapolis; Lanpher v. Glenn, 33 N. W., 10, 11, the buildings being in St. Paul; Gay v. Davey, 47 [30]*30Ohio St., 396, the buildings being in Cincinnati; Johnson v. Oppenheim, 55 N. Y., 280, the buildings being in New York; Miller v. Benton, 13 Atl. Rep., 678, the buildings being in New Haven, in which last case, the court remark upon the use of the word “tenement” as a word applicable in New Jersey, “ in popular and legal meaning, to parts of a building leased without the land upon which the buildings stand, ’ ’ as well as to land (p. 680).
Our statute, § 2498, code of 1892, upon the construction of which this case depends, has no such limiting words. Its benefits are for ‘‘ a [that is, any] tenant. ’ It contains no provisions for the surrender by the tenant of the leased property. Where the subject-matter of the lease is a building merely, the tenant may justly be required, in the states whose decisions are cited sujora, to ‘ ‘ quit and surrender possession ’ ’ of the demised premises, if he would escape the payment of subsequently accruing rent. But there can be no reason, in the case of a farmer whose cotton crop, in this state, it may be, is opening-in the field, in requiring him, after the expenditure of large sums on an annual crop, to surrender possession of the premises and abandon his crop in order to claim an apportionment of the rent where a ginhouse and machinery, constituting an essential part of the subject-matter of the lease, have been destroyed by fire, if, under our statute, he is otherwise entitled to apportionment. Our condition as an agricultural community is wholly different from that of the people of the manufacturing states, and this difference in conditions was doubtless in the mind of the compiler of the code of 1880, in which this statute first appears, and may well have occasioned the difference in the phraseology — a difference aptly suiting the law to the actual conditions of our people, by far the larger part of whom are agriculturists.
The farm in this case was a large and valuable one, one hundred and sixty bales of cotton being grown thereon in the year 1894. Certainly no building could have been more essential [31]*31to the value of the use of this leased plantation than the steam gin of the kind and value shown in the testimony. The appellee testifies that he would not have rented the place without the gin-house and machinery. The reasonable proportion of the whole rental of $1,150 which the ginhouse and machinery constituted, is shown to have been $350 by two witnesses, and the jury allowed only $275.
The clear tendency of all the modern decisions in our states has been to so modify the rule of the common law as to work out a result just and equitable in the situation. At common law, in the hiring of chattels, though the terms be as absolute and positive as those of a real estate lease, their absolute destruction, without the fault of the hirer, terminated the contract,” and it is well said by Mr. Justice Brown, in the case cited, that the clear tendency of the rulings has been to do away with the common law technicalities concerning real estate, and to bring the rules of the common law more in harmony with those respecting personal property;” and that “the distinctions growing out of the feudal system are disappearing, and this distinction between the lease of real property and the hiring of chattels is one which, sooner or later, will cease to exist.” In the same spirit is Coogan v. Parker, 16 Am. Rep., 679, 680.
We must give this statute a construction suited to the needs of our people, and in giving it the construction which we do, holding that it applies to buildings rural as well as urban, and that in case of the destruction of either kind by fire without the fault of the tenant, there should be an abatement of so much of the rent as was paid for the building, ’ ’ we think we do this. It is, we think, somewhat significant, too, that §§ 2497 and 2498 of the annotated code are placed now in the law relating to landlord and tenant, and immediately succeeding sections furnishing remedies for enforcing agricultural liens.
In the code of 1880 they stood in a connection perfectly con[32]*32sistent with the view' here announced of the statute, though not so markedly so as they do in their present connection.
We have given the subject a most thorough examination, due to its importance, and are satisfied that *the construction of § 2498 herein announced is the one most in harmony with the language of the statute, looking to the old law, the evil and the remedy, with justice and with the peculiar condition and needs of our agricultural population. We refer to the following authorities as bearing out the reason and spirit of our views, in addition to those already cited: “Rent is compensation for the use, and implies the continued existence of the property to be used, ’ ’ says Justice Brown, in the case referred to, page 691. To the same effect, in stronger language, is Porter v. Tull, 33 Pac. Rep., 965; Graves v. Berdan, 26 N. Y., 498; Gates v. Green, 4 Paige Chy., 355; Coogan v. Parker, 2 S. C., 255; Penn v. Kearney, 21 La. Ann., 21; Levy v. Dyess, 51 Miss., 510, as to the tendency of our decisions. Willard v. Tillman, 19 Wend., 358, a striking case, where, even in New York, prior to the act of 1860, in a case where the lease was of three rooms and a strip of land two hundred feet in length, and the buildings were wholly destroyed, it was held that the interest in the land remained, and was capable of beneficial enjoyment, but that the tenant was entitled to a pro rata abatement of the rent, and would only be held “for an amount which would bear to the entire rent a proportion which the value of the use of the remaining premises bore to the whole” at the rate of the annual rent. See, also, 120 U. S., 707; 2 S. C., 255; 4 Paige Chy., 355; 21 La. Ann., 21; and specially see the masterly opinion in Coogan v. Parker, 2 S. C., 255, s.c. 16 Am. Rep., p. 659, a case noticing, as does Mr. Justice Brewer in the case cited supra, the distinction made at common law between destruction of the leased premises by the act of God or the public enemy and by accident, as to the reasonableness of which distinction we express now no opinion. See 16 Am. Rep., pp. 666, 667. The distinction seems to have obtained at common law, whether the accidental fire was due to negli[33]*33gence of the lessee or not. The distinction seems to be approved in Coogan v. Parker but repudiated in Whitaker v. Hawley, supra. Our statute settles the matter for us. In this case (Coogan v. Parker) the court say on the general subject, in the absence of any statute at all: “ Rent is defined to be a certain yearly profit ... in retribution for the use. The existence of rent, therefore, presupposes land, and a possible usufruct, for there can be no just demand for retribution or compensation for that which does not exist. An agreement to pay rent, whether a simple contract or a covenant in form, is controlled by the nature of rent. If the conditions under which rent accrues do not exist, there is nothing for either an agreement or a covenant to pay rent to rest upon. . . . When parties contract together in terms that import the relations expressed by the foregoing definitions, it is obvious that their contract ought to receive such a construction as to preserve the rights and equities lying at the foundation of such definitions. The equity of a contract is its life, springing out of the idea of a reciprocity of benefits and obligations. ... A contract is the law of the parties; its equity is the reason of that law, and it is not a mere figure of speech to say that when the reason ceases the law ceases also.” This equity — reason of the law — as related to this subject-matter, is for us happily crystallized in § 2498 of the code of 1892.
We do not think the first instruction subject to the criticism made of it. The principle announced — not as clearly as it might have been, but substantially — is that, if the ginhouse constituted a material part of the consideration of the lease, on its destruction by fire, without the lessee’s fault or negligence, the rent should be abated in the proportion that the value of the use of the ginhouse and machinery bore to the value of the use of the whole premises. It was not intended to authorize ‘ damages, ’ ’ and, fairly construed, does not do so. The instruction is inartificially drawn, but we do not think it could have misled the jury. We find no error. Affirmed.