8 Minn. 281 | Minn. | 1863
By• the Oourt.
This action is brought to recover possession of certain demised premises, upon the ground that the lease is forfeited for non-payment of rent, and certain tases and assessments. The case was not argued in Oourt, nor has either party furnished its with points or authorities to aid our investigations. "We" are informed by the decision of the Oourt below, that the case was decided there upon whether a demand for the rent was necessary under the lease, to entitle the lessor to take advantage of the forfeiture occasioned by non-payment, the Oourt holding that such demand was waived by the terms of the lease. The question is presented by demurrer to the complaint. The lease was of lands in the city of St. Paul, for the term of twenty years, at a stipulated rent, payable quarterly, and also the payment by the lessee of all taxes and assessments levied or assessed upon the land. The covenant for re-entry for the breach of the lessees’ covenant,
We will first examine the question as to whether the terms of the lease waive the necessity of a demand of the rent before re-entry by the landlord for non-payment, and then whether any demand is requisite at all when the breach complained of is the non-payment of taxes. At the common law, when a landlord claimed a forfeiture for the non-payment of rent, it became his duty to make a demand of the rent in person, or by agent properly authorized. He must demand the precise sum due. He must demand it precisely upon the day when the rent is due. He must demand it at a convenient time before sunset. He must demand it upon the land, and at the most notorious place of it, and at the dwelling-house, if there is one, and at the front door of the house, unless aplace of payment is mentioned, when it must be there demanded. He must demand it in fact, although there should be no person upon the land ready to pay- it. Adams on Ejectment, 4th ed., 187. The precision which was required in the fulfilment of the prerequisites above mentioned, to enable a landlord to take advantage of a forfeiture for non-payment of rent, rendered it difficult and perplexing to succeed in this respect. It was evidently to avoid this that the stipulation waiving demand was inserted in the lease. The effect
A very much more difficult question arises upon the breach of the covenant for the payment of taxes, as to whether a landlord can re-enter for their non-payment without a demand. I confess the question was one of great doubt in my mind, when I first entered upon the examination of it, and the almost entire absence of authority upon the point, rendered its solution more embarrassing. The great strictness required of landlords who seek forfeitures for the non-payment of rent, I conceive to have arisen from the extraordinary remedy they possessed for the collection of that character of debt, by way of distress. I can find nothing which required a landlord to make a demand before forfeiture on breach of a covenant to repair, or insure, or keep insured, or similar agreements. In the case of Tate vs. Crawson, 6th Iredell, North Carolina, the
In Jackson vs. Harrison, 17 John, R., 66, Justice Yan bless? in his opinion at page 69, says, “The Plaintiff equally fails in showing a right of entry by reason that the Defendant did not pay the United States tax because the indispensibly necessary step of making a demand of the Defendant within the period required by law, in order to create a forfeiture, was not taken.” No authority is cited, and no reasons given. The point is assumed and asserted without argument. In the case of Garner vs. Hannah, 6 Duer, Superior Court Reports, N. P., p. 262, the same question came up, and the dictum in Jackson vs. Harrison, was considered and overruled. The Court shows that a stipulation on the part of a tenant to pay taxes does not make such taxes part of the rónt, because they are uncertain both as to amount and time of payment, and are not payable to the landlord hut to the government, for
The complaint, therefore, is good, as it alleges a breach of the covenant to pay taxes, for which a right to re-enter is given by the lease. The order overruling the demurrer is af-