Godwin v. Harris

71 Neb. 59 | Neb. | 1904

Hastings, G.

Plaintiff's in error, defendants below, and hereinafter called defendants, complain of a judgment for restitution in an action for forcible detainer. November 1, H. D. Estabrook leased the. premises in question to the defendant Godwin for the “term from the first day of November, 1901, until the first day of December, 1901, and thereafter from month to month so long as the rent shall be paid and the other covenants of the lease kept and performed. * * * This lease not to be in force later than the 1st day of November, 1902.” Godwin took possession and has held it ever'since. The codefendant Brown is in possession of a portion of the premises under a sublease from God-win; before the expiration of the lease an extension for two years, by mutual consent, was indorsed upon it and signed by the parties. By deed dated October 28, 1902, Estabrook conveyed, the premises to the plaintiff Harris. The deed was delivered to Harris November 5, 1902. November 8, notices were served on defendant Godwin, by both Estabrook and Harris, of the sale and that his lease would terminate in 40 days, and that November’s rent was payable to Harris and that it was demanded by him. On November 10 the formal three days’ notice to quit was served on defendants, they having paid no rent for November. November 14 of that year Harris commenced this action and, on the 26th day of the same month, recovered judgment for restitution, which was appealed by the defendants to the district court. The complaint is that the defendants neglected, failed and refused to pay the rent for the month of November, 1902, which rent was, as provided in the lease, payable on the first day of November, and the action is based on the assumption that, because of such nonpayment, the lease was terminated. Plaintiffs in error claim that the portion of section 1020 of the code, providing that “a tenant shall be deemed to be holding over his term whenever he has failed, neglected or refused to pay the rent, or any part thereof. Avhen the same was due,” is unconstitutional and void: First, because it was added by way of amendment, and the amenda-tory act of 1875 contained no repealing clause, contrary to section 19, article 2 of the constitution of 1866; and second, because the provisions of the amendatory act of 1875 are not germane to the original section which the act purported to amend. It is therefore claimed that the title to the amendatory act does not indicate its subject, and the act is thcu-cfiore obnoxious to ■ another clause of section 19, article 2, which requires the subject of the act •to be expressed in its title. It is argued that, the amendment of 1875 being void, the forfeiture for the nonpayment of rent can only be enforced in the manner provided by the common law. It is'claimed that there is not enough in the act, without the; amendment of 1875, to warrant proceedings against a tenant holding over his term and, at any rate, that these defendants can be Infiel to be tenants holding over their term only by'virtue of that special enactment of 1875, because the lease runs more than a year longer, and could be terminated according to its tennis in three, ways: I>y the expiration of its terms; by forfeiture for the nonpayment of rent; and by a sale of the premise's, when the lease should be; terminable by a forty days’ notice.

Among the stipulations of the lease was one that “the second party further agrees that, if the said rent shall not he paid promptly at the time the same shall become due, then this lease shall at once terminate.” The defendants claim that such provisions, while in form an agreement that failure to pay the rent shall terminate a lease, have always been construed as provisions in favor of the landlord. They may be waived by him and are waived unless due steps are taken by him to reenter and forfeit the lease.

It is then urged by the defendants that the forfeiture at common law, where there is no statute to aid it, must be a demand on the precise day the rent becomes due of the amount of the periodical payment; that such demand must be before sunset and continue until after sunset, with demand of possession at that time. This rent was due on November 1. Mr. Harris’ deed was only delivered to him November 5, and payment of the rent was demanded by him on the 8th; notice to leave was served on the 10th, and this action brought on the 14th of the same month; there was therefore no demand of the money on the day that if became due, and none of the above formalities enacted upon the premises. Defendants claim that, since the statute is invalid and the common law requirements have not been complied with, there Avas in this action no demand and no forfeiture, and the judgment of restitution is consequently erroneous. They say that no statute of the state of Nebraska, except the void one contained in the amendment of 1875, abrogates this rule of the common law, and that the holdings in this state, that tenants failing to pay rent shall be deemed holding over 'their term, all rest upon this void statute. The defendants also claim that by the terms of the lease the rent Avas payable at the office of Estabrook’s agent; that the demand for the payment of rent by Harris Avas in writing, and served by a deputy sheriff, and designated no place at which the rent should be paid; that no change of agent was made and, before the commencement of this suit, the rent was tendered to Mr. Estabrook’s agent, who refused it. He had in fact given Godwin notice on November 3, when tbe October rent was paid, tbat be could receive no more rent. Rights are also predicated on tbe notice from Estabrook and plaintiff, served November 8, stating tbat the premises were sold and that defendants’ rights under tbe lease would terminate in 40 days from tbe receipt of that notice. It is urged tbat this is a complete waiver of any forfeiture for nonpayment of rent on November 1.

Tbe position of tbe plaintiff, defendant in error here, appears on page 17 of bis brief: “If we are correct in our position tbat, under tbe law of the state of Nebraska and under tbe terms of this lease, nonpayment of rent gives the lessor an option to be exercised at any reasonable time thereafter by demand and notice to terminate the lease for nonpayment of rent, then it follows,” etc. He claims that tbe right to forfeit at any time after a default for rent, by a demand for it under tbe terms of this lease, existed independently of tbe act of 1875.

Tbe only clause of tbe lease on Avhich a forfeiture is claimed is, “If tbe said rent be not paid promptly at tbe time tbat tbe same becomes due, then this lease shall at once terminate, and the party of tbe second part agrees to surrender tbe immediate possession of the same.” This clause, undoubtedly, would be sufficient at common law to warrant a forfeiture of tbe lease, if a demand were made Avith due formality of payment of rent on the day it became due and it were not paid. Does it Avaive such demand? If not, is tbe act of 1875 excusing such demand valid?

There can be no question, and none is raised by tbe plaintiff, as to tbe fact tbat at common law a demand, Avith all due formalities, must be made on the day the rent becomes due and before tbe tenant enters upon another term. Tbe cases cited by defendants’ counsel abundantly establish tbat this demand is required at common law, unless expressly waived. Ordinarily, such waiver is contained in tbe Avords “without further notice or demand” in tbe provision for tbe forfeiture, as in tbe case of Pendill v. Union Mining Co., 64 Mich. 172, 31 N. W. 100. Of course, the same waiver might he expressed in other apt terms, but we do not find anything in this lease equivalent to it. It would seem that, in the absence of the clause of section 1020 of the code doing away with such demand and notice of forfeiture on the precise day that the rent becomes due, any demand after that day and before the arrival of the next rent day would not be good. Whether such demand must be accompanied with all the ancient formalities of the common law, it is not necessary to decide. If not made on the day it is due, and the tenant enters upon a new term, it is at common law deemed to be waived. The landlord is then held to be relying upon his action for the accruing rent. See the cases collected in 32 Cent. Dig. col. 370. It is certainly waived in this instance, so far-as any forfeiture of November 1 is concerned, by the formal notice of November 8, that the tenancy would terminate in forty days from that date. This distinctly recognizes the tenancy as still existing at that time. There are, to®, numerous cases holding that it is only the owner of premises at the time of a forfeiture who can avail himself of it. His grantee can not. Small v. Clark, 97 Me. 304, 54 Atl. 758.

We are constrained to think that, in the absence of a statute permitting demand and forfeiture for overdue rent at any time, plaintiff had no right of action for forcible detainer in this case.

It remains only to consider whether the act of 1875 is open to the objections made to it. It seems clear, and no attempt is made by the plaintiff to dispute it, that it is obnoxious, under the former decisions of this court, to both of the objections made against it. Its subject is not expressed in its title, and it does not repeal the section which it seeks to amend.

It is recommended that the judgment of the district court be reversed and the cause remanded for further proceedings according to law.

Ames and Oldham, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings according to law.

REVERSED.