Gaskill's lien attached only on Trainer's leasehold interest.
This leasehold was subject to two conditions, payment of rent monthly, in advance, and that the lessee should immediately proceed to expend $ 10,000 on the premises, in the erection of buildings. Trainer could not comply, and delivered up the premises to Moor, who holds them, and his lease stipulates that he may do so.
It is contended for appellant, that writing the words " cancelled and discharged," across the face of the lease, would not destroy its contents. If so, the rights of the parties continue as if these words had never been written. The lease provides that Moor may terminate thetenancy, if the rent is not paid. He is in possession, and there is a failure to pay: he elected to terminate the lease, why may he not do so? But it is said he did not enter on the ground of forfeiture. He was in possession when the rent became due, and could not reenter upon his own possession. His election to terminate the tenancy in this condition of things was a right, and he exercised it.
But it is claimed for plaintiff that Moor had no right to reenter, without a formal demand of rent, on the premises, on the day it became due. But if this rule be in force here, the tenant may waive the demand, and Trainer did this, by confessing his inability to pay, and delivering possession to Moor. But in this State no demand is necessary. By the statute of 1850, sec. 13, p. 150, holding ever after the expiration of the lease, or contrary to the conditions or covenants of the lease, or after rent is due and payable, for three days after demand of the possession, the lessee can recover possession by action for unlawful detainer. We therefore say no demand at common law is necessary. It is sufficient if rent be due, and demand be made of the possession in writing; and we cite thestatute to show that the common law is altered by it, and to show that without a clause in the lease, we had the right to reenter for non-payment of rent, on demand of possession as above. But the tenant has waived the necessity for the demand, by admitting his inability to pay, and surrendering the possession.
Such would be the case, if the words " cancelled and discharged," on the face, were a nullity, as is contended for. Are not these words as effective as if the parties had written, " We hereby agree that this lease is cancelled, and we mutually discharge each other from the covenants thereof?" and this is what they necessarily import. The intention is clear, and this is what the law regards. (Sugden on Vendors, 160 et seq. ) Any form of words will operate a surrender, which plainly indicates the intention of the parties.
But it is said Trainer had not the power to terminate his estate as against Gaskill, because his lien had attached in the meantime. The lease was at an end between Trainer and Moor. Gaskill's lien was only upon Trainer's right to enjoy the property during the term, subject to its conditions imposed on Trainer by the lease, and that neither Trainernor Gaskill complied with, or offered to comply with. If Gaskill claimed to be substituted to Trainer's rights, he would take them cum onere, and he would be bound to pay the rent and build the house; but he did neither, nor offered to do either. He is estopped on the same principle that the owner of a lot who tacitly permits it to be sold to an innocent purchaser, without giving notice of his claim, is estopped from asserting it.
JUDGES: Heydenfeldt, Justice, delivered the opinion of the Court. Wells, Justice, concurred.
OPINION
HEYDENFELDT, Judge
The first proposition of the respondent is correctly stated, that Gaskill's lien attached only on Trainer's leasehold interest, subject to all the conditions of the lease from Moor to Trainer.
From this it is attempted to be deduced, that as by the terms of the lease, it was to be forfeited upon non-payment of rent, the failure of the lessee to pay destroyed the lien of the plaintiff.
This would be only true if there had been a technical forfeiture. The failure to pay cannot alone create one. There was an equal necessity that a formal demand for the rent should have been made on the day it became due. Nor for the purpose of forfeiture will a waiver of the demand ever be implied, because a forfeiture, from its very nature, cannot take place by consent, and it is not favored by the rules of law.
Having declined to take the legal steps to produce the forfeiture, Moor, it is said, received the leasehold estate by surrender, and that consequently the right of all parties derived under the lease were determined with it. Such a rule would be fraught with hardship and inconvenience, and has no legal sanction. If he took by surrender, the estate must nevertheless be subject to the burdens with which it was invested at the time; for although by the surrender, the leasehold estate is merged in the fee, yet this principle of merger, which arose out of the fondness of the law for convenience and symmetry, was never designed to defeat the rights of a third party, which had intervened before the merger took effect.
It is unnecessary to decide whether the words " cancelled and discharged," written across the lease, have the legal effect of creating a surrender or not, because in either event, from the views here taken, the right of the plaintiff to the enforcement of his lien is upheld.
Judgment reversed, and cause remanded.