The lease, construed in connection with the facts appearing on the trial, created a continuing term, extending beyond the 9th day of April, 1877, when the ten years mentioned in the instrument expired. (Dolese v. Barberot, 9 La. An. 352; Meni v. Rathbone, 21 Ind. 454; Hooff v. Ladd, 1 Cranch C. C. 167; Hawkins v. Pope, 10 Ala. 493; Bacon v. Brown, 9 Conn. 334; Despard v. Walbridge, 15 N.Y. 374; People v. Swayze, 15 Abb. Pr. 432; Ranlet v. Cook, 44 N.H. 512.) No formal election or notice was necessary to the continuance of the lease. (Kramer v. Cook, 7 Gray, 550; Kelso v. Kelly, 1 Daly, 419.) The tenders were sufficient, ( Code Civ. Proc. § 1942)--time not having been made the essence of the contract. ( Code Civ. Proc. § 1442.) If the payment were to be construed as a condition precedent, the defendant would be entitled to relief from a forfeiture. (Baxter v. Lansing, 7 Paige, 350; Haskett v. Alcock, 1 Call, 535; Skinner v. Dayton, 2 John. Ch. R.) But the clause of the lease is a covenant, and not a condition working forfeiture. (Taylor's Land. & Ten. §§ 277-8; Platt on Coveuants, p. 95-96, 171; Parsons on Cont. 6th ed. pp. 529-33; Dawson v. Dyer, 5 Barn. & Ad. 587; Boone v. Eyer, 1 H. Black. 373; Wilkinson v. Petit, 47 Barb. 230; Paschall v. Passmore, 15 Penn. St. 295; Stavers v. Curling et al. 3 Bing. N.C. 368; Hayden v. Inhabitants of Stoughton, 5 Pick. 528; Grant v. Johnson, 5 Barb. 161; Newson v. Smythies, 3 Hurl. & N. 480; Carpenter's Assignee v. Cresswell, 4 Bing. 411; Palethorp v. Boegner, 52 Penn. St. 149.) Plaintiff should have requested the defendant to pay the assessment. (Meni v. Rathbone, 21 Ind. 454.) The assessment itself was void. The record shows that it comes within the late decision of this Court in the Matter of Montgomery Avenue, 54 Cal.
JUDGES: Department No. 1, McKee, J. Morrison, C. J., and Ross, J., concurred.
OPINION
McKEE, Judge
Payment of rent when it becomes due, and performance of other covenants of a lease, under which a tenant is in possession of leased premises with the privilege of renewing the lease at the end of the term, are conditions precedent to the exercise of the right of renewal. When, therefore, the defendant in this action, as tenant under the lease from the plaintiff, made default in payment of the last installment of rent at the time it became due, and failed to perform the covenants of the lease as to payment of taxes and assessment liens, her possession of the leased premises, after the expiration of the term, did not operate as notice to plaintiff that she had elected to continue the term, nor did it work a renewal of the lease; for her right to renew depended upon the performance by her of her covenants in the lease.
Judgment and order reversed, and cause remanded.