| Neb. | Jan 15, 1879
The case as made by the answer as amended, and which, for the purposes of this opinion, are admitted to be true by the demurrer, may be stated in a few words.
On the nineteenth day of October, 1871, the plaintiff was the owner of a certain lot in Omaha. One Haudbine and wife owned certain buildings situated on said lot. On that day a lease was executed between the plaintiff and the said Ilaudbine, whereby the plaintiff leased to Haudbine the said lot by metes and bounds, for the term of three years from the first day of January then next ensuing, at a certain rent therein speci
On tbe twentieth of September, 1872, Desire Haudbine, wife of tbe said lessee, with tbe knowledge and consent and acquiescence of tbe plaintiff, sold and conveyed tbe said buildings to one Depuy, and on tbe twenty-ninth day of September, 1873, tbe said Depuy, with tbe knowledge and consent of plaintiff, sold and conveyed tbe said buildings, and assigned tbe said lease to tbe defendant Hughes.
It seems tbat after tbe defendant Hughes became tbe occupant of said premises, he did not usually, if ever, pay tbe rent with punctuality, but tbat the same was always afterwards received by said plaintiff, and all want of punctuality in tbat respect was from time to time waived by tbe said plaintiff; tbat said rent was paid in full up to tbe fourth day of July, 1876, when, on tbe twelfth day of tbat month, tbe plaintiff notified tbe defendant Hughes to quit tbe said premises; tbat four days thereafter tbe defendant tendered to tbe plaintiff one month’s rent, which was refused; tbat within five days thereafter defendant tendered to the plaintiff $28.50, three months’ rent in advance, from tbe said fourth day of July, 1876, which was also refused; tbat one object for offering such payments on tbe part of tbe said defendant was to retain possession of tbe premises until be could remove tbe buildings therefrom, and tbe chief object of this
After examining all of the authorities cited by plaintiff I think that he is estopped to deny the right of defendant Hughes to remove the buildings, upon the facts admitted by the demurrer. In coming to this conclusion, I do not find it necessary to deny the position taken by the plaintiff, to the effect that where a tenant, having the right to remove fixtures erected by him on the demised premises, accepts a new léase of such premises without reservation or mention of any claim to such fixtures, and enters upon a new term thereunder, the right of removal is lost, notwithstanding his actual possession has been continuous. In the case at bar I think there was but one term. The time which Hughes occupied the premises, after the expiration of the term of three years from the fourth of January, 1872, was a tenancy from quarter to quarter — not properly speaking a term, and such holding will be presumed to be under and subject to the terms of the previous lease. See Ewell on Fixtures, 177, and notes.
Up to the fourth of January, 1875, the holder of the Haudbine lease had, according to its terms, the right to remove the buildings on condition that such holder complied with the terms of the lease, and it is alleged in the answer that he did so comply yfith such terms, un'der the tenancy from year to year, or from quarter to quarter, after the termination of the three years term up to the fourth day of July, 1876, to which time he alleges in his answer that the rent was duly paid. It is true, that under the terms of the lease, a payment of $28.50 for one quarter's rent in advance became due on the fourth day of July, 1876, which was not paid or tendered until after the service of the notice to quit. • But this rent was tendered, to the plaintiff
The law does not favor forfeitures as between landlord and tenant even of the term, and I think they should be less favored where the subject of the forfeiture is valuable property owned by the tenant. “Where a tenant has forfeited his lease, by a breach of the covenant for the payment of the rent, courts both of law and equity consider the clause of re-entry (or forfeiture) to be mainly inserted for the landlord’s security, and will interfere in the tenant’s behalf, although all the formalities of a common law demand may have been complied with, upon his satisfying the rent due, and making compensation for any damages which the landlord may have sustained in consequence of this omission. And in general a court of equity will relieve the tenant from a forfeiture when the breach has been accidental, or when it has been incurred by neglecting to pay a sum of money, the interest upon which may be calculated with certainty, and the landlord thereby compensated for the inconvenience he may have sustained by the tenant’s withholding payment.” See Taylor’s Landlord and Tenant, sec. 495, and authorities there cited. And again: “Rut courts of equity are only closed against a tenant where the forfeiture is incurred by his willful and culpable neglect to fulfill the terms of his covenant, and not in cases where the omission has been occasioned by inevitable accident. And the general rule to be applied to all such cases seems to be that courts of equity will relieve where the omission and consequent forfeiture are the result of mistake or accident, and the injury and inconvenience arising from it is capable of compensation.” Ibid, sec. 496.
The pleadings in this case show no damages or inconvenience to the plaintiff other than the withholding
After the decision in this case was announced the plaintiff requested the court to remand the case to the district court with leave to him to answer to the merits. Such course would be contrary to the established practice of this court. The general rule is, that when a party, after an adverse ruling upon his demurrer to a pleading, elects to stand upon it, and brings the case to this court for review, he will be permanently concluded thereby.
Judgment aeeirmed.