Brock v. Desmond & Co., 45 So. 665

Brock v. Desmond & Co.

45 So. 665 | Ala. | 1908

ANDERSON, J.

The intestate, Brock, being the undertenant, held the premises subject not only to the terms of his own demise, but subject as well to the performance of the terms and conditions impressed upon the estate by the provisions of the original lease from the ground landlord. If, therefore, the tenant fails to pay his rent or perform any other condition of the original lease, the landlord may by appropriate legal proceedings enforce such performance, and, if they result *636in removing the tenant, the undertenant may as a necessary consequence be removed also, and this, notwithstanding the undertenant may have paid his rent to his immediate landlord, and in every other way performed the conditions of his lease; the remedy of the under-tenant for such eviction being confined to his immediate lessor upon covenants of the underlease for quiet enjoyment. “The undertenant is chargeable with knowledge of the contents of the original lease. Notice of the lease is generally notice of its contents.” — McAdams on Landlord and Tenant, p. 816, § 248.

The original lease provided for a forfeiture in case of default in payment of the rent, and the proof shows that the lessee, Killan-Randle Produce Company, was in arrears; that the rent was demanded, and upon nonpayment the lease was declared annulled by the agent of the owner, after notice to the lessee. This annulment of the original lease gave the original owners the right to take possession and re-lease the premises, and their new lessee had the right to the possession as against any one, including the undertenant of the Killan-Randle Produce Company. It is true a tenant in chief cannot voluntarily surrender a posessory right that has accrued to him to. the prejudice of a subtenant (24 Cyc. 1383; Brown v. Butler, 4 Phila. [Pa.] 71) ; but in the case at bar there was no voluntary surrender of a right, but a forfeiture for non-payment of the rent, which gave the landlord the right to annul the contract under the terms thereof, and the act of the lessee in assenting was not the surrender of any right, as the right to hold had been forfeited, but it was a mere surrender of possession, to which the owners were entitled..

While there are many assignments of error, the brief of counsel for appellant consists of a mere statement of the case, with perhaps an insistence that the trial court *637erred in giving the general charge requested by the defendant. The defendants in this case having been entitled to the possession of the property, and having committed no breach of the peace, and used no* unnecessary force to acquire the same, the trial court did not err in giving the general charge requested by the defendant.

The judgment of the circuit court is affirmed.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.