Stated some facts preceding the lease on the record. In August, 1850, Dessassier and Basquit went into possession of the Encinal, under a verbal lease from Peralta for five years, for the purpose of cutting woodand making charcoal. A lease was drawn, but was never executed. In November, 1850, Basquit quit the concern, and retired, when Maitre took his place, who, with Dessassier, continued the business. On the 23d, Dessassier and Maitre leased to Chipman and Aughenbaugh a certain part of the Encinal for four years and a half, from the 1st February, 1851. Maitre retired, and Payot came into his place, and on the 21st February, 1851, the lease on the record from Peralta to Dessassier and Payot were executed. The cutting of wood and making of charcoal were continued by them and their successors until they were enjoined by the plaintiffs, about the 1st November, 1851. The respondent soon after this acquired an interest in the lease, and subsequently the whole was transferred to him, with the consent of Peralta.
On the 26th March, 1851, the appellants procured from Dessassier, Emeric, and Payot, their confirmation of the sub-lease from Dessassier and Maitre to them, made 1st February, 1851, by endorsement, viz.: " The written lease is hereby confirmed by us this day, we having become the lessors of the within-described ground from Don Antonio Peralta. Our Company consisting of Joseph Dessassier, Joseph Emeric, and J. M. Payot. March 26, 1851.
(Signed) " J. M. Payot & Co."
On the 16th October, 1851, the appellants, then lessees of Emeric for part of the Encinal, for a term to end the 1st August, 1855, contracted with Peralta to purchase the reversion upon the term to Emeric, to end the 21st February, 1857, and Peralta, on the 22d October, 1851, executed to appellants a deed of conveyance, and delivered to them his copy of the lease with Emeric.
Thus, while the ultimate reversion vested in the appellants, the intermediate reversion of the part underlet to them vested in Emeric.
The appellants insist that Emeric has forfeited his lease on two grounds: 1, non-payment of rent; 2, the commission of waste.
There was no forfeiture for the non-payment of rent. The lease contains no clause of re-entry for this cause. The payment of rent is not made a condition of the tenure: it is a mere covenant, and no rule of law, statutory or common, works a forfeiture for this more than any other debt owing to his landlord. Such termination of a tenancy can only arise under an express agreement of the parties. (Adams on Ejectment, 157, 158, 160, and cases cited.)
Theact gives no remedy unless the tenant holds over: failure to pay is not sufficient .
There can be no holding over where the term is not ended by efflux of time, or the act of the parties, or when the tenant has committed an act of forfeiture. (Norris & Peake, 528, sec. 3; Ib. 531 to 534; 4 Barn. & Ald. 401; 6 Eng. Com. Law Rep. 535; 6 Bar. & C. 519; 13 Eng. Com. Law Rep. 238; Adams on Ejectment, 160.)
If the act be held to impose a forfeiture for non-payment of rent in the absence of a stipulation to that effect, still demand must be made " before sunset," as at common law. (Jackson v. Harrison, 17 J. R. 66; Adams on Ejectment, 160, 161, 162; 6 Esp. 106.)
The strict common law rule is insisted on where it has not been repealed in all cases. (Adams on Eject. 162 to 192.)
In this case, the tender made would prevent a forfeiture, even if the right to re-enter had been reserved. Defendant was in possession of the part of the premises under a rent of $ 80. Why should he not have the right to recoup this sum? Why pay $ 140 per month for the whole, when they had in effect got back a part? One claim should compensate the other, and the balance only should be recovered. (8 Wend. 109; 3 Hill, 174.)
The commission of waste by a tenant for life, or a term of years, does not in this State work a forfeiture, but only subjects him to the payment of treble damages. At common law, waste was punishable when committed by guardian in chivalry, tenant in dower, or tenant by the curtesy, because their estates were created by act of law; but where the tenant came in by demise, and could have provided against it, and did not, it was his own default. The remedy was extended to tenants for life and for years by the Stat. of Marlbridge, 52 Henry III., c. 23, and of Gloucester, 6 Edw. I., c. 5. By the latter, the forfeiture did not extend to the whole premises, but to the place where the waste was committed. (2 Bla. Com. 282, 283, 286.)
The Stat. of Gloucester is not in force here. (See acts of 1851, p. 92, sec. 250.)
No statute of this State imposes forfeiture for waste, or other penalty than treble damages.
It is contended the respondent had no right to cut wood under the lease, the waste complained of. A writing may be read by the light of surrounding circumstances, and parol evidence is admissible to disclose this, not to ascertain a secret intent, but the meaning of the words used. (1 Greenl. Ev., sec. 277, 278, 279, 280, 282, 283, 284, 286, 287, 288, and 295.)
The acts of the parties, or usage, may be proved to explain doubtful words or clauses in a deed. (3 Phil. Ev. 139, note 954; 16 J. R. 14, 23; 7 Pick. 274.)
The lease, it is evident, was not made for farming purposes, for the right to cultivate the soil is retained by the lessor.
A right to graze a few cows and horses is given to tenants. In mining leases, the intent of the parties is ascertained by showing the use made of the premises before and at the time of the lease, and parol proof is adequate to show this. If mines were open before the lease, it is not waste in the tenant to continue digging for his own use, for it is now become the mere annual profit of the land. (2 Black. Com. 282; 22 Vine's Abr. 439, 440; Coke Litt. 54 b; Coke's Rep. B. 5; Saunders' case.)
The preceding lessees were cutting and charring wood, Peralta consenting, up to the time of their lease to defendant.
JUDGES: Heydenfeldt, Justice, delivered the opinion of the Court. Murray, Chief Justice, concurred.
OPINION
HEYDENFELDT, Judge
The appellants say that the estate of the defendant (a term for years) is forfeited, for two reasons: first, for the non-payment of rent; second, for the commission of waste.
At common law, there was no forfeiture upon either of these grounds. It was only by the Statute of Gloucester, 6 Ed. I., that the remedy of forfeiture was given for waste, and it was then expressly confined to the place wherein the waste was committed. (2 Black. 283.) Our statute confines the remedy to the recovery of treble damages. (Laws, 566, 52, 59.)
In reference to the first point, I can come to no other conclusion than that, by the 13th section of the act concerning forcible entries and unlawful detainers, it was the intention of the Legislature to make the non-payment of rent work a forfeiture of the estate of the tenant. In order to effect this, however, it must be held necessary to pursue the same strictness as is required at common law to work a forfeiture, where there are stipulations in the contract of lease to that effect. The rent must be demanded on the day it becomes due, and at a late hour of the day. (See the case of Jackson v. Harrison, 17 J. R. 66, and the cases there cited; Adams on Eject. 160; Gaskill v. Trainer, post 334.)
The record in this case discloses no demand whatever of the rent, and it follows there can be no forfeiture.
Judgment affirmed.