150 Iowa 717 | Iowa | 1911
Plaintiffs leased to defendant certain land to be used for an amusement park for a term of five years beginning February 1, 1908. The rental agreed upon was “$300 for the year 1908 and $350 per year thereafter, all payable on the first day of July of each year.” The lease provided that the premises should not be used for unlawful purposes under penalty of forfeiture at the election'of the lessor, and that, upon breach of any of the conditions therein, defendant without notice would surrender the same. The lessee failed to pay the rent July 1, 1909, and on August 21st following the lessor caused to be served on defendant a notice of forfeiture, and that he be given possession on September 7th; such forfeiture being grounded on the breach of stipulation to pay rent and of the condition against the use of the premises for unlawful purposes, it being alleged that intoxicating liquors had been sold thereon and that gambling devices had been in operation. On September 8, 1909, the defendant paid the rent which became due July 1st .previous, and on September
These rules are thus stated' in 2 Coke on Littleton (1 Am. from the 19th London Ed.) 211b, section 311: “If the feoffer had distrained for the rent for nonpayment whereof the condition was broken, he should never enter for the condition broken; but. he may receive that rent and acquit the same and yet enter for the condition broken. But if he accept the rent due at a day after, he shall not enter for the condition broken because he thereby affirmeth the lease to have and continue.” So in Greene's case, 24 Eliz. (1 Cro. Eliz. 3) : “It was clearly resolved that the bare receipt of the rent after the day was no bar, for it was the duty due to him (the landlord), but a distress for the rent or a receipt of the rent, due at another day, was a bar; for these acts do affirm the lessee to have lawful possession.” See 2 Tiffany on Landlord and Tenant, 1387; 24 Cyc. 1361; 18 Am. &
These rules are not questioned, but plaintiff argues that, as all the rent paid was due July 1st, receiving it, although covering a period in the future, did not constitute a waiver of the several breaches alleged. The theory on which the waiver in such a case is based is that, by receiving rent payable for the use of the premises in the future, the landlord acknowledges the binding force of the lease for a like period, and.it is not perceived that the circumstances that only a portion of that paid is for future occupancy can obviate the application of the rule. Had the rental been payable by the month, the recept of a month’s rent in advance would have waived any breach of condition in the lease then known. The act of receiving the rent recognized the existence of the lease, and assented to its continuance for the period for which the rent was paid. To hold otherwise, and to permit the landlord to recover possession of the premises when he has already received from his tenant the rents stipulated, would be inequitable and un'just. Gomber v. Hackett, 6 Wis. 323 (70 Am. Dec. 467)._ Suppose the rent for a month were payable in advance on the first day of the month, but should be received at some time during the month; would this be waiver of known breaches because of the recognition of the continued existence of the lease ? The Supreme Court of Minnesota so held in Kenny v. Seu Si Lun, 101 Minn. 253 (112 N. W. 220, 11 L. R. A. (N. S.) 831). The principle involved was precisely like that in the case at bar. In Barber v. Stone, 104 Mich. 90 (62 N. W. 139), the monthly rent of $7 fell due September 1, 1892, and there was $4.50 back rent. On the following day the tenant paid $8.50, and the landlord, after waiting several days, began summary proceedings for possession. In holding that the action could not be maintained the court, speaking through Hooker, J., said:
It would seem but just that the tenant should be permitted to remain in possession for the period covered by the rent paid, unless this might be forfeited by subsequent breaches. As said in the last case cited, it would be “inconsistent for a landlord to assert a forfeiture and termination of a lease which he does by his notice and action, and at the same time take and retain money, his only right to which is predicated upon the continuance of the tenant’s right to occupy under the lease.” In that case it was suggested that the payment of four-sevenths of the monthly rent entitled the tenant to occupy four-sevenths of a month and is peculiar in that respect. That some difficulty might be involved in determining what portion of the year’s rent defendant should have paid for the use of the premises up to the time of the opposed reentry can not obviate the application of the principle that receiving payment for such use in the future acknowledged