Alexander v. Touhy

The opinion of the court was delivered by Valentine, J.: The plaintiff Alexander leased to William C. Eagles two' certain „ lots in Leavenworth city for the term of seven years commencing on July 1st, 1866. • Eagles covenanted to pay certain rent, to set out and take care of certain trees, and to pay all taxes that might be levied on the improvements made by himself. The following stipulations are contained in said lease, to-wit: “And it is agreed that if any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part to re-enter the said premises and to remove all persons therefrom.” “And it is agreed that at the expiration of said term of seven years the said party of the second part, having previously filled all his said covenants herein contained, may remove from said premises any and all improvements which he may have erected thereon during said term. It is further understood that said party of the second part shall pay all taxes general or special that may be assessed against any and all improvements that may be put on said premises during said term.” [69] 1. Lease; removal of buildings erected by lessee. Eagles did not perform all of his said covenants, and in May, 1873, the plaintiff commenced this action against Eagles and the other defendants, Touhy and Repine. The action was, first, to recover $350, including the following items, to-wit, $150 for rent not paid, $150 as damages for not setting out and taking care of said trees, and $50 for taxes levied on said improvements and paid by ± A ^ the plaintiff; second, replevin for a house removed from said premises and placed on other premises; third, for an injunction to restrain the defendants from removing other buildings from said premises. It seems from the petition below that the defendant Eagles had erected six buildings on said premises. The petition below set up all of these facts, and other facts. The only allegation however relating particularly to the defendant Touhy reads as follows: “The said plaintiff further avers that the said J. P. Touhy claims to have purchased one of the said buildings which he threatens to remove from said premises, and which he is now preparing' to remove from said premises.” Touhy demurred to this petition on the grounds, first, that it did not state facts sufficient to constitute a cause of action against him; second, several causes of action were improperly joined. The court below sustained the demurrer on the first ground, and to reverse that ruling the plaintiff now brings the case to this court. We think however that the demurrer was rightfully sustained. The lease evidently contemplated that Eagles should be the owner of all the buildings erected by himself on said premises. He was to pay the taxes on them. He was to have the privilege of removing them at the expiration of his lease. There was nothing in the lease to prevent him from removing them sooner; and there was no provision giving the plaintiff any lien upon them prior to the termination of the lease. And if the buildings belonged to Eagles, he of course had the right to sell them or to remove them, or to authorize any one else to remove them at his pleasure. There is no law to prevent him from so doing; and the provision in the lease that he may remove them at the expiration [70] of the lease can hardly be construed as preventing him from removing them or selling them during the continuance of the lease. 2. Lease; covenant; forfeiture. It will be noticed that the only provision in the lease that contemplates in any degree a forfeiture of any kind is the one which provides that “if default shall be made in any of the covenants herein contained, then it shall be lawful for the” plaintiff “ to re-enter the said premises and to remove all persons therefrom.” A default alone does not create a forfeiture. It only gives the plaintiff the right to demand a forfeiture. He must “re-enter the premises and remove all persons therefrom,” or demand a removal, in order to create a forfeiture. But ziothing was ever done under this provision for the purpose of creating a forfeiture. On the contrary, the plaintiff sued the defendants for all the rent that would accrue for said premises up to the time when said lease would expire by the force of its own limitations, although that time had not yet arrived; thereby ratifying and confirming the continued existence of said lease. The lease was thez’efoz’e subsisting in full force and operatiozz when this action was commenced. For the same reasons that the demurrer was rightfully sustained the injunction against Touhy was rightfully dissolved. The judgment of the court below is afih’med. All the Justices concurring.