Van Rensselaer v. Jewett

McKissock, J. There is a unity in the condition that cannot be broken, at least by the lessee, by any assignments or subdivisions of the premises. Whoever holds a part holds that part subject to the performance of the whole condition. That which is necessary to the existence of the whole must be necessary to the existence of the parts. Bach and all the holders are bound to see to it that the whole rent is paid. The plaintiff was right then in demanding the whole; and under that demand he has a right to bring actions against all the separate holders, however numerous. If this were not so, by what rule of apportionment would he be ever able to comply with the strictness of the rule that he is not to demand either a penny too much or too little. (1 Saund. 287, n. 16.) By the common law an assignee or grantee of a reversion could not enter for condition broken, except in case of lease for years. But by the 32 H. 8, c. 34, which has been re-enacted in this country, (1 R. S. 747, §§ 23, 25,) he may ; and under this statute it has been held that the assignee of a part of the reversion cannot re-enter, on the ground that the condition being entire cannot be apportioned by the act of the parties. (Note to Saund. sup.) — 128 — And there would appear to be no better reason.why'an entire condition should be apportioned by act of the lessee or his assignees than by the lessor. The next inquiry is. whether the demand was made at the proper time. On the argument of this branch of the case, it appeared to be assumed, that the determination of that question depended in whole or in part on the question when a suit at law might be brought for the rent. That I apprehend is by no means the criterion ; for the right to bring covenant for the rent may exist and the time for re-entry not yet have arrived. The breach of the covenant to pay could never alone work a forfeiture of the lease, nor could it determine the time of such forfeiture, unless the time named in the covenant for payment or the existence of the right of action are made the premises of the condition. A covenant may also be a condition, but that is only so where the technical words of a condition are inserted in this wise, provided also and the lessee doth covenant, &c. (Woodf. Land. & Ten. 247, 248 ; 2 Black. 154, 156.) The first proviso in this lease as to the payment of the rent, in terms, limits the right to distrain to a period twenty-eight days after the day of payment before mentioned—the first day of February. Now this proviso can by no just criticism be said to make any attempt to control the time at which suit might be brought, and if it had, it would have been nugatory. (Hill v. Stocking, 6 Hill, 289.) But it does give the right of distress, which did not exist by the common law, as this is a rent charge; and it also determines that the right shall arise if the rent or any part of it shall remain due for twenty-eight days after the time of payment. Connected with and growing out of this right of distress comes the right of re-entry as given in the condition respecting re-entry. The word “ or,” it will be perceived, is used between the different branches of the condition—“ If it shall happen that there is no distress, or if either of the covenants or conditions shall be broken.” The sentence has the same meaning as if the word also had been used, so that after the branch respecting distress, it had read, “ also if either of the covenants and con129 ' ditions.” The latter terms of the proviso give the right, cf entry whenever any of the conditions or covenants therein before contained shall be broken, while the former terms of the condition make it dependent on the occurrence of the right to dis-train. It is plain therefore that the authority to distrain and the right to re-enter are coeval, or at least, that when they do both exist they arise at the same time on the same day. Stated in a separate proposition, the result of the whole matter is this: If the rent remained due and in arrear for the space of twenty-eight days after the time appointed for payment, and there was not then sufficient distress on the premises, the right of re-entry arose, and the demand was made on the right day. (Woodf. Land. Ten. 267, ed. 1816; Clun's case, 10 Rep. 129.) In this last case the rent was payable at a certain feast, or within thirteen weeks thereafter, and- it was held not to be due or demandable until the end of the thirteen weeks. (See also 1 Saund. 287, n. 16; Fabian v. Winston, Cro. Eliz. 209; Cropp v. Hambleton, id. 48.) In such cases it has sometimes been the practice for greater caution to make demand both days, as was done in Jackson v. Harrison, (17 John. 66.) But I am of opinion that there could be no re-entry for condition broken, in this case, if there was a sufficient distress on the premises, and that the plaintiff was bound to have shown that there was none. The courts have always been strict in their requirements to prevent forfeitures ; and accordingly in ejectment for the non-payment of rent under the statute of 4 Geo. 2, it was held that the plaintiff could not recover unless he proved that there was not sufficient distress, though the statute was silent on the point. (Note to Saund. sup.; Doe v. Lewis, 1 Burr. 620.) The same rule has been enforced under our statute, (Jackson v. Collins, 11 John. 4,) and it is now incorporated into our revised statutes. (2 R. S. 505, § 30.) If this has been required in proceedings under these statutes, much more should it be in a case where the rigor of the common law is invoked to enforce a forfeiture, and that too, under á proviso in the grant containing almost the words in which the judicial — 130 — rule above stated has been transplanted into the statutes of this state. We were referred on the argument to Jackson v. Collins, above mentioned, and to Jackson v. Hogeboom, (11 John. 163,) to show that the plaintiff might demand the rent and re-enter notwithstanding there was sufficient distress; and it was said that a demand and non-payment was evidence of the breach of the covenant to pay. But it is the breach of the condition and not the breach of the covenant to pay that gives the right of re-entry. Besides,, the cases referred to only decide that in ejectment for non-payment of rent, if the party proceed under the statute he must show want of sufficient distress; while if he proceed at common law he must prove a demand. There is no intimation in either case that the estate is ever forfeited by a simple breach of the covenant to pay, or without regular demand in a common law proceeding. The demand was not in any respect originally resorted to as a proof of the breach of the covenant to pay: that could be shown in a much more simple way; but to give some check to the destructive power of a condition broken. And it was said in connection with that purpose, in the language of the old books—a lessor cannot enter without demand, which must be on the land, for the land is the debtor and the rent cometh out of the land. (Co. Litt. 201, b.) It is unnecessary to advert to the other questions, discussed on the argument, as it already sufficiently appears that the plaintiff was rightly nonsuited. Whittlesey, J. The points made on the argument all relate to the requisites of a re-entry of the non-payment of rent, and principally as to the demand for the rent. Answers to the following questions will determine the points raised: 1. Was the demand of rent made on the right day ? 2. Was it made at the right place ? 3. Was it made for the right sum ? 4. Could there be any re-entry for non-payment of rent, since it was admitted that there was sufficient distress on the premises to satisfy the rent? — 131 — At common law great strictness and technical nicety were required to entitle the reversioner to re-enter for non-payment of rent. There must be a demand of rent—-and the precise rent due—upon the precise day when it is due—-at a convenient time before sunset—at the place appointed for the payment of the rent. (Duppa v. Mayo, 1 Sautid. Rep. 287, n. 16.) As the law leans against forfeitures, this strictness is not relaxed in our own courts. (Jackson v. Harrison, 17 John. Rep. 66.) When was this rent due? It was payable on the 1st of February by the lease. A very common proviso in leases is that. “ if the rent shall be behind and unpaid for the space of twenty-eight days after the day of payment, then it shall be lawful for the lessor to re-enter,” &c. The decided cases are under such clauses; and they hold that the demand must be on the 28th day. (See note to Saund. Rep. above cited.) The proviso in this lease is not so: but is, “ that if the rent shall be behind and unpaid for the space of 28 days, it shall be lawful for the lessor to prosecute for the recovery or to distrain.” Nothing is said here about re-entry—but there is the further proviso, that if no sufficient distress can be found upon the premises to satisfy the rent in arrear, or if either of the covenants or conditions on the part of the lessee shall be broken, then it shall be lawful for the lessor to re-enter. The whole taken together then stands thus: The rent was due the first of February—if it was not paid on that day the covenant to pay it was broken —but the lessor could not prosecute or distrain until 28 days: after the rent was due and the covenant was broken. He could re-enter for covenant broken and for non-payment of rent if there was no sufficient distress. Looking at these provisos and the effect of them, it seems to me quite clear that the demand of rent for the purpose of re-entry should have been made on the first of February. Indeed it has been held that the lessor need not wait for the expiration of the 28 days under such a proviso before he can distrain, as there is rc negation of his right to distrain before that time. (Hill v. Stocking, 6 Hill, 277.) The — 132 — same construction might be applicable to the right to prosecute for rent due. So that it may be considered at least doubtful whether the lessor was bound to wait the 28 days before suing or distraining for rent due. Is it the argument that the lessor should wait the 28 days to see if sufficient distress did not remain upon the premises to pay the rent upon the supposition that distress could not be made until after 28 days ? .If this is the argument, then if sufficient distress is found after 28 days are gone, there should not be a re-entry at all. And indeed it seems clear to me, under the proper construction of the further proviso, that there should be no re-entry if there was sufficient distress on the premises. The spirit of the agreement is, that if the covenant to pay the rent was broken, and there was not a sufficient distress—or if the rent was not paid, or there was not enough upon the premises out of which the party could pay himself, the lease should be forfeited and the lessor might reenter—but if the rent was paid, or there was enough on the premises out of which the lessor could pay himself by distress, as the lessor could thus obtain the rent he should not be at liberty to forfeit the lease for its non-payment. In this case it is admitted that there was sufficient distress on the premises; and if so, there could be no re-entry on account of rent in arrear, unless because the covenant to pay rent was broken ; but in my judgment the further proviso qualifies the covenant to pay rent by the clause in relation to sufficient distress so far as the breach of such covenant is to be "punished by re-entry. I therefore answer the 1st and 4th questions by coming to this Conclusion : as to the first, that the demand of payment of rent should have been made on the first of February, and in regard to the other that as there was sufficient distress on the premises to pay the rent due, a re-entry was not authorized for non-payment of rent; as at that time the lessor could have paid himself by distress, the remedy by distress not having then been abolished. It is unnecessary to consider the other questions raised on the motion for a nonsuit. — 133 — Beardsley, C. J., was of opinion that the nonsuit was correctly granted, on the ground that the existence of a sufficient distress precluded a re-entrv under the peculiar provisions of the grant in this case. New trial denied.