2 N.H. 163 | Superior Court of New Hampshire | 1819
It is somewhat questionable, whether such a demand was made for the rent in this case as would entitle the plaintiff to enter for condition broken. The niceties required in making such a demand are, at common law. numerous. 2 Maul. & Selw. 526.— 1 Saund. 237, note 16.—Co. Litt. 201-2.—7 D. & E. 119.—Doug. 485— 11 John. 1.—[17 John. 66, Jackson vs. Harrison, 18 John. 447.]
But however that may be, on the other point it is well settled, that after a knowledge of condition broken, and before a re-entry, an acceptance of the rent in arrear is a waiver of the forfeiture, and an admission that the tenancy is still to continue. 3 Co. 65, Penant's case.—Cr. El. 553, 572, Hanover vs. Oswell.—2 D. & E. 425, Gregson vs. Harrison.—Plow. 133, Browning vs. Beston.—Doug. 57, Kinnersly vs. Orpe— [18 John. 183.]
The present case does not come within an exception to this principle, that the forfeiture is not waived by acceptance of the rent., when the lease is ipso facto void,, and not merely voidable, for breach of the condition ; because the lease here was not to become void, except on a breach and re-entry.] 1) This lease then having been voidable, the acts of the lessor could confirm as well as annul it; and, on principle, we think, that those acts, after a re-entry should have an operation similar to what they possess before a re-entry.
It is unjust, that the lessor should receive both the penalty and the rent; or, in other words, should accept the performance of the condition, and retain also the forfeiture for its non-performance.
In England, therefore, by the 4th George II., it has been enacted, that if the lessee after judgment in ejectment against
We do not know, that this statute has ever been expressly adopted here ; but, as the essential principles of it were previously in force by the practice of their courts, from which practice in the absence of any statute or usage, our practice is derived ; and as those principles are highly just, we shall not hesitate to enforce them.
The entry in this case by the plaintiff was a mere formal one, like that which tenants are obliged to confess in ejectment ; and long before the 4th t?f George 11. the lessor, after such entry, was required, on tender of the arrears, to discontinue his suit, and permit the lessee further to enjoy the premises.(2)
In this case, the voluntary receipt of the rent in arrear, after a mere formal entry, was a receipt of that for which he entered, and may, therefore, well be deemed an assent to the termination or abandonment of the entry, and a continuance of the lease.
No language was then used to rebut this Inference, and the acceptance of the money from the tenant, without any intimation of an intent to continue to hold the land would be a deceit, which is not to be countenanced.
Under these circumstances, therefore, we think the tenant was justified in his subsequent acts ©f gathering and removing the garden vegetables, which he himself had planted and cultivated ; and it deserves remark, that this conclusion is fortified, and not in terms contradicted by any of the numerous authorities, which lay down the doctrine generally, that after non-payment of rent, an acceptance of it, without discriminating whether before or after entry, is a waiver of the forfeiture- Vide avihorities ante
Verdict set aside, and new trial.
1 Brod. & Bing. 200f Grakara, j.
