Rea v. Eagle Transfer Co.

Opinion by Mb. Justice Mitchell, The opinion of the learned judge below and the argument here have taken a much wider range than the case calls for. Each party at the trial asked for binding instructions in his favor, and the judge accordingly directed a verdict for defendant. The correctness of this action is all that we need consider. The action is ejectment to terminate a lease for nonpayment [276] of rent, and no place of payment being specially named it was incumbent on the plaintiff to show a demand on the land previous to the declaration of forfeiture. It is admitted that no such demand was made, and the plaintiff therefore failed in a part of his case essential to his right to recover. In McCormick v. Connell, 6 S. & R. 151, it was held, that, “ where there is a condition of re-entry on nonpayment of rent several things are required by the common law to be previously done, to entitle the reversioner to re-entry. There must be a demand of the precise rent due, on the very day on which it becomes due, on the most notorious place on the land, and a demand must in fact be made on the land, although there should be no person on the land ready to pay it.....This part of the common law has been adopted by us; is our own common law.” I do not find that the law thus declared has ever before now been questioned so far as to require a citation by this court of that case in the eighty-one years since it was decided. The plaintiff, however, relies on a course of dealing between the parties whereby the tenant was in the habit of bringing the rent to the lessor. This was not sufficient. It appears that the provisions of the lease had not been closely adhered to by the tenant and the preceding lessor, and plaintiff on acquiring the leased land had given the tenant notice that he would “ hereafter insist strictly upon the terms of the lease.” It also appeared that the real cause of plaintiff’s dissatisfaction was not so much the want of punctual payment of the rent as other alleged breaches of the conditions of the lease. But as the case turns on the failure to demand the rent, these are not material. While the law will enforce forfeitures within the strict terms of the contract between the parties, it will not go out of its straight path to aid them. Cases are numerous where rent has not been paid on the day but has been accepted later without objection, so that a tenant has been led to believe that the strict time will not be insisted on, and equity has relieved against an attempted forfeiture. But no case in law and certainly none in equity has held that a custom for the tenant to seek the landlord and pay will relieve the latter from the necessity of formal and legal demand if he seeks to make nonpayment the basis of a forfeiture. Judgment affirmed.