Ryan v. . Reynolds

Clarkson, J. From an examination of the lease in controversy, made by plaintiff, there is no clause giving him a right of reentry for the nonpayment of rent. The lease is for 5 years with renewal privilege or right for 5 additional years, rent $25.00, payable semiannually in advance. Simmons v. Jarman, 122 N. C., p. 195. It is laid down in House v. Parker, 181 N. C., 42, and accepted law in this jurisdiction: “It is true the contract contains no express power of sale; but the general laws of the State in force at the time of its execution and performance enter into and become as much a part of the contract as if they were expressly referred to or incorporated in its terms. O’Kelley v. Williams, 84 N. C., 281; Graves v. Howard, 159 N. C., 594, and Van Huffman v. Quincy, 4 Wallace, 552.” Plaintiff relies on the statutory right as follows: C. S., 2343. “In all verbal or written leases of real property of any kind in which is fixed a definite time for the payment of the rent reserved, therein, there shall be implied a forfeiture of the term upon failure to pay the rent within ten days after a demand is made by the lessor or his agent on said lessee for all past due rent, and the lessor may forthwith enter and dispossess the tenant without having declared such forfeiture or reserved the right of reentry in the lease.” The statute was passed to protect landlords who made verbal or written leases and omitted in their contracts to make provision for reentry on nonpayment of rent when due. The consequence was that often an insolvent lessee would avoid payment of rent, refuse to vacate and stay on until his term expired. In the present case suit was commenced before the justice of the peace for $50.00 rent and a summary action of ejectment against defendants. The justice of the peace gave judgment for the $50.00 and cost and his returns show that the action before him was for this amount and possession of the premises. *566 The defendants, through, their attorneys, before the trial of the case in the Superior Court on appeal, made the following motion: “Now, if your Honor pleases, we tender this motion: The defendants herein pursuant to and by virtue of section 2372 of the Consolidated Statutes, do hereby tender in cash the sum of $50.00, the rent which the plaintiff claims to be due, and do hereby tender $50.00 as costs, or so much thereof as may be necessary to pay the costs of this action, and prays that further action may cease. The plaintiff declined to accept the tender, as above stated. The defendants, through counsel, presented to the court the sum of $75.00 pursuant to the tender.”- C. S., 2372, is as follows: “If, in any action brought to recover the possession of demised premises upon a forfeiture for the nonpayment of rent, the tenant, before judgment given in such action, pays or tenders the rent due and the costs of the action, all further proceedings in such action shall cease. If the plaintiff further prosecutes his action, and the defendant pays into court for the use of the plaintiff a sum equal to that which shall be found to be due, and the costs, to the time of such payment, or to the time of a tender and refusal, if one has occurred, the defendant shall recover from the plaintiff all subsequent costs; the plaintiff shall be allowed to receive the sum paid into court for his use, and the proceedings shall be stayed.” The court overruled the defendants’ motion for the time being and heard the evidence. At the conclusion of the evidence, the court below allowed the motion of nonsuit and signed the judgment as above set forth. The action was tried out on claim set forth in the justice of the peace’s return — $50.00 rent and possession of the premises leased. C. S., 2372, was passed in the interest of the tenant. A landlord could bring an action after demand as required by the statute, when each installment of rent was due. The tenant had to pay the rent and cost before judgment or get out. This statute was to protect the tenant from hasty eviction, at the same time the landlord obtained his rent and cost. The two statutes construed together are just and equitable. The forfeiture which gives right of eviction in the present lease is made so purely by statute. The parties could have agreed in the lease upon strict terms as in Midimis v. Murrell, 189 N. C., 740. There the lessor and lessee agreed that the lessor had the option to declare the lease “null and void” upon failure to pay the rent. In the instant case the statutory forfeiture is saved by a statutory right to pay rent sued for and cost before judgment. The two statutes must be construed together — in pari materia. C. S., 2371, is as follows: “On appeal to the Superior Court, the jury trying the issue joined shall assess the damages of the plaintiff for the detention of his possession to the time of the trial in that court, and *567 judgment for tbe rent in arrear and for tbe damages assessed may, on motion, be rendered against tbe sureties to tbe appeal.” Tbe present suit was for one year’s rent — $50.00—and possession of tbe property. Tbe rent due since tbis action was instituted — $25.00— was tendered and refused by tbe plaintiff. Tbe court below found tbis as a fact, but upon tbe payment of tbe $50.00 sued for, $25.00 rent due since action waS instituted, and cost, tbe court below allowed defendant’s motion of nonsuit. Plaintiff in bis brief says: “At tbe trial in tbe Superior Court tbe defendant tendered rent and cost due, except tbat wbicb was due for sand removed, wbicb was not tendered.” Bunn v. Patrick, 156 N. C., 248. There was a controversy in tbe beginning over tbe $50.00 by Coleman Foster, wbo was tbe assignee of Reynolds & Fields, and plaintiff sued all three — Foster in tbe beginning claiming bis assignors were liable. Tbe next contention of plaintiff was tbat, under C. S., 2371, supra, tbe amount due for sand removed should be assessed up to tbe time of trial as rent or damages. Tbat 3,000 to 5,000 yards of sand were removed and not paid for, and tbis was certainly rent or damages. Tbe language of tbe lease, clause 2d, is as follows: “Tbe annual rent during tbe term shall be $50.00 payable in advance, $25.00 semiannually.” Tbe 3d clause gives to tbe lessees, their heirs and assigns, tbe privilege to remove sand from tbe bed of tbe creek and to pay plaintiff 10c per yard for tbe sand taken and carried away. There is nothing in tbe language of tbe lease or otherwise tbat indicates tbat tbis 10c a yard is rent. It is simply an agreement between tbe parties to pay for sand as taken at a fixed price. Defendants need not take tbe sand, but “tbe privilege” is given. When taken, plaintiff has a right to an action for tbe price stipulated. Tbis Court cannot make a lease, its only power is to construe one made. In C. S., 2371, supra, tbe language clearly says tbe jury shall assess damages for tbe detention of bis possession. Here tbe amount fixed is tbe rent and tbe term has not expired. Tbe plaintiff cannot “tack on” to tbe rent contract tbe sand agreement, although both are in tbe same lease. Tbe language of tbe lease does not permit tbis to be done. It was contended by defendants on tbe argument tbat, under tbe contract wbicb was for 5 years with privilege of renewal for 5 years; tbat tbe defendants have made very valuable improvements on tbe land and a “strict forfeiture” would confiscate these improvements. Both statutes use tbe word “forfeiture” and O. S., 2372, gives tbe remedy to tbe tenant upon forfeiture for tbe nonpayment of rent. The statute declares tbe meaning — that tenant shall pay all back rent, etc., and cost before judgment. From a careful review of tbe record, tbe judgment of tbe court below is Affirmed.