17 Johns. 66 | N.Y. Sup. Ct. | 1819
delivered the opinion of the court. The stipulation in the concluding part of the lease, prohibiting the lessee from making alterations in the buildings, rests in covenant merely, and is not made a condition for the breach of which the estate is forfeited. Nor can the lessor of the plaintiff avoid the lease, because one of the buildings was underlet. The condition in the lease is, that the lessor shall not “ assign over, or otherwise part with, this indenture, or the premises thereby leased, or any part thereof, to any person,” áse. These words must be construed to mean an assignment of the premises, or part of them, for the whole term ; and no forfeiture is incurred by letting for a shorter period ; under-leases not being considered as coming within the terms of the condition, or proviso,
The plaintiff equally fails in showing a right of re-entry, by reason that the defendant did not pay the United States’ tax, because, the indispensably necessary step of making a demand of the defendant, within the period required by law, in order to create a forfeiture, was not taken.
It remains to be considered, whether the plaintiff is entitled to recover, on the ground that a forfeiture has been incurred by the non-payment of the rent. This is a proceeding at common law, and the claim of the plaintiff being siricii juris, all the niceties required by the common law must be previously complied with, to entitle the reversioner to re-enter. There must be a demand of the rent due on the last day, a convenient time before sunset; and, if there be a house on the land, the demand must be made at the house of the tenant, if he is at home. Several other things *are required to be done, which it is not necessary to detail for the purpose of deciding this case. (Co. Lift. 201. b. 202. a. 1 Sound. 287. n. 16. and the cases there cited.) Orj the 1st and 20th of November, 1817,
Judgment for the defendant.
So, where a lessee for lives covenanted not to sell, dispose of.\ or assign his estate in the demised premises, without the permission of the lessor. &-c. It was held that a lease of part of the premises by the lessee for twenty years, was not a breach of the covenant; and that nothing short of an assignment of his whole estate would produce a forfeiture of the lease. Jackson, ex dem. Stevens, v. Silvernail, 15 Johns. Rep. 278.
To entitle the reversioner to re-enter, when there is a condition of reentry reserved for non-payment of rent; the common law requires that there should be a demand of the rent. The demand must be of the precise rent due. It must be made precisely upon the day when the rent is due and payable, and made a convenient timé before sunset. It must be made on the land and at the most notorious place of it; unless a place is appointed where the rent is payable ; in which case the demand must be made at such place. And the demand must be made in fact and so averred in pleading, although there should be no person on the land ready to pay it. 1 Sound. 287. p. 16. See also Remsen v. Conklin, 18 Johns. Rep. 450. Jackson, ex dem. Lewis, v. Schütz, Ibid. 174. Van Rensellaer v. Andrews, Hid. 431. As to waiver of the rights of forfeiture, see Jackson, ex dem. Norton, v. Sheldon, 5 Cowen, 458. Jackson, ex dem. Blanchard, v. Mien, 3 Cowen, 220.