Hallett v. Wylie

Van Ness, J. delivered the opinion of the court. This is a hard case upon the defendant; and if the, court could, consistently with settled and established principles, relieve him against the payment of the rent in question, we should most willingly do it. But it cannot be done, without overturning a series of decisions, to which this court is bound to conform. We sit here “ jus dare” not jus facere.” We think it may safely be said, that there is not a case in the books, where the destruction of the demised premises by fire, has been held to excuse the tenant from the payment of the rent on an express covenant; but, in every case, where a defence on that ground has been attempted, it has failed. (2 Str. 763. Monk v. Cooper. 2 Ld. Raym. 1477. Alleyn, 27. Paradine v. Jane. 1 Term, 705. Doe v. Sandham. 3 Burr. 1638.) The law on this point has, in one of the late cases in England, been considered so fully established, that the court would not even heat-an argument respecting it. (1 Term, 310.) We have found but one case, and that was in chancery, where the law on this subject has ever been doubted. But there the circumstances were special, and presented a case different from those to which the general rule has been applied. (Ambler, 619. Brown v. Quilter.) On the argument, the counsel for the defendant admitting the general rule to be against them, endeavoured to take this case out of it. It was said, that the writing upon which this suit is brought, is not a lease, but a mere agreement for a lease, and that even if it were the former, it contained no express reservation of rent. Whether this contract is to be considered as a lease, or only an agreement for a lease, must depend upon the intention of the parties, to be collected from the whole of the instrument, (1 Term, 735. Goodtitle v. Way, 5 Term, 163. Roe v. Ashburner.) There is nothing in it to show that the parties contemplated any further assurance. The words made use of, imply a present demise, and the fact of the defendant’s entry under the agreement, and continuing in the occupation of the house, [48] &c. from May to December, when the fire happened, is strong evidence to show, that in the understanding of the parties, it was, in fact, a lease; and the period for which the premises were demised, as well as the terms upon which they were to be held, are definitely and accurately stated. Nothing, in our opinion, can be clearer, than that this is, to all intents and purposes, an executed contract. If the defendant had filed a bill for a specific performance, there can be no doubt, that the chancellor would have told him, he had already the legal estate, and that he could not interfere. As to the idea that there is no express reservation of rent in this agreement, if that were necessary, the defendant’s counsel are certainly mistaken in point of fact. The premises are demised “ at the rent of 2601. per annum, payable quarter-yearly, during the term of four years, the first payment of 65l. to be made on the 1st of August, 1804,” &c. And, at the conclusion of the contract, the defendant agrees to take the said house and premises, on the terms and conditions aforesaid.” There is, therefore, in contemplation of law, not only an express reservation of rent, but a covenant to pay it. No particular technical words are requisite to make a covenant. Any words which import an agreement, between the parties to a deed, will be sufficient for that purpose. (1 Burr. 290. Lant v. Norris. Bul. Ni. Pri. 156. Cro. Jac. 399.) There was another point made on the argument, by the defendant’s counsel, which I will briefly notice. It was said, that the contract between the parties implied a covenant, on the part of the plaintiff, to rebuild the outer walls of the house ; and, that the court ought to hold the performance of that covenant, to be a condition precedent to the plaintiff’s right to recover the rent. The agreement by no means implies a covenant, on the part of the lessor, to rebuild; and if it did, it will be found, on examining some of the cases before cited, that, even where the lessor was under a covenant to rebuild, in case the house should be destroyed by accidental fire, and he neglected or [49] refused to do so, the lessee was, notwithstanding, held liable for the payment of the current rent. The court are, therefore, of. opinion, that the plaintiff must have judgment. Judgment for the plaintiff.