Kerr v. Merchant's Exchange Co.

The Vice-Chancellor : In deciding this case, I am content to follow the doctrine of the supreme court of Ohio, in Winton v. Cornish, 5 Ohio Rep. 303. In that case, there had been a lease of a cellar and a room over it in the corner of a building several stories high, which was destroyed by fire. After the destruction, the lessee erected a small building on the site of the cellar and room, and of a height corresponding [322] with the height of the room which he had previously occupied ; and the lessor brought an action of ejectment to dispossess him, insisting that the lessee took no interest in the land and that, by the destruction of the building, his interest in the cellar and room had ceased. The court considered that such was the true constiuction of the lease ; and, accordingly, held that, in the destruction of the building, the demised premises being gone, the lessee’s interest went with it. So, in the present case, the leases are not to be considered as leases of land, but only of apartments in'the building distinct from the land on which it was erected. Leases must be construed according to the intention of the parties and with reference to the subject matter, which, in this instance, were rooms or apartments in the building designated by certain numbers. In Doe on the demise of Freeland v. Burt, 1 T. R. 701, Ashhurst, J., observes that it may be necessary to put a different construction on leases made in populous cities from that on those made in the country ; and he gives reasons for the difference which apply to this case. I have no difficulty, therefore, in construing the lease in question as passing no interest in the land; and I think it follows that, with the destruction of the premises which were demised, namely, the apartments in the building, the lease itself and all rights and , interest under it terminated. Where the demise is of a house and lot or of land with a building thereon or where land is comprised in the lease and the buildings are destroyed by fire, the lease or contract is not at an .end, unless in the event of destruction of the building it is so stipulated, because the land remains and the lessee’s right of possession is not disturbed. He may still use and occupy the land ; and his covenant to pay the rent may well continue in force. But, I apprehend such is not the case when the whole subject matter of the lease is destroyed and gone. And I cannot but think that when the Merchant’s Exchange was burned down, the complainants’ interest ceased and they were no longer liable upon their covenants to pay rent. True, that in the demand of a quarter’s rent up to the first of February, one thousand eight hundred and thirty-six, the defendants appear to have considered the lease as still in force and the relation of landlord and tenant [323] as still subsisting. But in doing so, they acted under a mistake as to their own and the complainants’ legal rights : and .... , . , . , , , I am inclined to think that, in paying the whole ot that quarter’s rent, the complainants have also acted under a similar mistake. This demand and payment of rent does not, however, in my judgment, continue the relation of landlord and tenant beyond the period when it occurred, nor give the complainants a right to relief under this bill. It must be dismissed ; but, as the complainants may have supposed, from the defendants’ manner of treating the subject, that- they had rights, it may be dismissed without costs.