Parker v. Geary

Hemingway, J. Prior to the act of March 2, 1875, the statute regulating the action of unlawful detainer did not confer upon a landlord the right to maintain it for a failure and refusal to pay the rent when due and to quit possession upon demand in writing by the landlord. Gantt’s Digest, sec. 2934. But the act of that date was an amendment of the existing law, and made this a ground of maintaining the action (Mansf. Dig. sec. 3348); and such was the law when this action was instituted. The defendant argues that the amendment was desigmed to make this a ground of maintaining the action only where, by the terms of the lease, it was made a ground of forfeiture ; but if the tenant held after the termination of his lease by forfeiture, the landlord had a right, under the law as it stood, to maintain the action, and if the amendment were given the meaning contended for, it would make no change in the law it expressly amended. But the legislature must be presumed to have intended the amendment to have some effect; and, to give it effect, it must be held to have made the failure and refusal to pay rent due, and to quit possession after demand in writing, a ground of action, independent of its being made a ground of forfeiture in the lease. Such is the statute law in most of the States, and our legislature but introduced into our law a remedy in general use elsewhere. 2 Taylor’s Land. & Ten. (8th ed.), sec. 717, n. 2 and sec. 728a, n. 1; Wright v. Gribble, 26 Minn. 99; Leary v. Pattison, 66 Ill. 203; Judd v. Fairs, 53 Mich. 518; Borden v. Sackett, 113 Mass. 214. It follows that the allegations of the complaint constituted a cause of action, and that the demurrer should have been overruled. The judgment is reversed, and the cause will be remanded, with directions to overrule the demurrer, and to proceed further in accordance with law.