Product Company v. Dunn.

Clahic, C. J., after stating the facts: Besides the facts above recited, the lease (which is set out in full) also «contained the following further agreement: “Should the party of the second part make default herein and fail to perform the agreements entered into herein on its part, or any of them, or fail to pay said rent when the same is due, then and in that case the party of the first part shall have the right to enter said premises and take possession thereof as of his former estate.” If the plaintiff had failed to pay the annual rent in advance, at or before 1 April of any year, the defendant, under the above clause, had the right to enter and take possession. But the defendant is in still better case here, for the five years’ lease expired 1 April, 1905, by its terms, and the plaintiff not having exercised its “right and option” and made payment of the annual rental on or before that day, the lease expired by its own terms, and the defendant on 3 April notified him thereof and demanded possession. The defendant was within his rights in refusing, on 26 April, to renew the old lease, and subsequently refusing, on 24 Tune, the tender of rent and, on 15 July, declining to accept $1,550 purchase-money. In Meroney v. Wright, 81 N. C., 390, there was simply a stipulation for payment of rent, without any provision for re-entry upon default. Here, not only was there such provision, but the lease expired by its limitation, unless the plaintiff had on the day of its expiration, or before, exercised his option to renew by giving notice and paying one year’s rent in advance. This was a condition precedent, and not having been complied with, the lease then and there terminated on 1 April, 1905. The option to renew, and the option *474 to purchase, must have been exercised during the existence of the contract. Alston v. Connell, 140 N. C., 491; 21 A. and E. Enc. (2 Ed.), 931, and authorities there cited. The tender of rent after the expiration of the lease did not restore the plaintiff’s option. Vanderford v. Foreman, 129 N. C., 217. Nor did the fact that plaintiff has made some improvements upon the land entitle plaintiff to the option which he had forfeited by failure to exercise it in time. Blanchard v. Jackson, 55 Kan., 239. Where there is a renting from year to year, remaining in possession is an election to continue, and non-payment of rent is merely ground for entry by lessor, if stipulated for. Indeed, in such case, the lessor must give the lessee one month’s notice to quit in a lease from year to year. Rev., 1984. The authorities cited by plaintiff sustain that proposition. But here the five years’ lease expired 1 April, 1905, and the plaintiff had a stipulated “right and option” for extension and continuance, and also purchase at the price specified. These options could be exercised by plaintiff only while the lease was in force. Not having exercised the option before the lease expired, on 1 April, the defendant was not required to acknowledge its renewal after-wards ; and the lease not being in force, he was not bound to accept the tender either of rent or purchase-money thereafter. The defendant having demanded possession, 3 April, the plaintiff cannot take any advantage of its own wrong in remaining in possession till 2 August, when it was turned out by defendant. No Error.