By ike Court,
DixoN, C. J.
The question, whether, upon general principles, fixtures of a chattel nature, erected by a tenant upon demised premises, for any other purpose than that of ornament, domestic convenience, or to carry on trade, may be removed by such tenant, does not necessarily occur in this case. The tendency of the later American decisions seems clearly to favor such right of removal, but the law on the subject is not well settled, and should it hereafter arise, it will deserve a careful consideration.
In the present case, we consider the usage of the city of Milwaukee, in tenancies like the one under consideration, so clearly established, that we are relieved from determining, upon the principles of the common law, what the rights of the parties would be without it. The general custom of many years’ standing in that city, in the absence of any agreement to the contrary, to allow lessees of naked or vacant lots, upon what are commonly called ground leases, to erect buildings, and other improvements upon them, and to remove such buildings and improvements at or before the expiration of their leases, is alleged in the answer and was clearly proved. Its existence is not contradicted or denied by the respondent. It is a valid custom, with which the parties to the lease in question must be supposed to have been acquainted, and to have contracted with reference to it in respect to all matters about which their contract is silent. Van Ness vs. Pacard, 2 Peters, 148.
It is contended, however, by the counsel for the respondent, that the contract in question is not silent upon the subject matter of the usage; that there are clauses in the lease which are inconsistent with the usage, and to which it must yield. If this be so, the custom cannot prevail. To prove this, two covenants are relied upon; one, in which the lessee *171agrees to pay the rent, except in case of the destruction of the premises by accidental fire; the other, in which he promises to quit and deliver them up at the end of the term, reasonable use and wear thereof, and damages by accidental fire, or other accidents not happening through his neglect, only excepted. It is said that the expressions “use and wear,” and “ damages by accidental fire,” can only be applied to buildings and other improvements of a perishable nature, and not to the lot, which is indestructible by such means, and that therefore, by implication from these words, the subsequently erected buildings became a part of the premises, and cannot be taken away. It is to be observed, that in drawing the lease, the parties used one of the printed forms in general use, in which the covenants referred to occurred in print. It is also further to be observed, that the grant or demise itself was of a bare lot or piece of land, described as the north thirty feet of the south one-third of quarter block sixty-nine, in the first ward. No mention is made in it of buddings or improvements of any kind. The rent is small, such as would be paid for a mere lease of the ground. The proof clearly shows, and it is not disputed, that the premises, at the time of the demise, were wholly unimproved. Under these circumstances we do not think that the subsequent occurrence of the apparently inconsistent words, ought to be permitted to change or enlarge the meaning of the word “premises,” in connection with which they are used, so as to make it include buildings and other improvements where none are mentioned or contemplated in the granting clause; but that it should be understood in the same sense that it would have been had they not occurred, and held to mean and refer to the premises demised, in the situation in which they were when the lease was taken. It seems to us clear that this was the intention of the parties, and it is not inconsistent with the whole instrument. If it were otherwise, the destruction by accidental fire, of the most trivial and unimportant building subsequently placed upon the premises by the lessee, would operate to discharge him from the payment of rent, which certainly was not intended by the lessor. It was not the design of either, that *172the payment of rent should depend at all upon the future erection or destruction of buildings or other improvements. The building in question being, therefore, according to the custom, a moveable fixture, is to be considered the personal property of the tenant, which he may sell or mortgage, and which may be seized and sold on execution against him; and the lessor having, by the terms of the lease, no lien upon it for the rent, it only remains to be determined whether the tenant or the defendant as his mortgagee, had, at the time of the commencement of this action, forfeited or lost their right of removal. The usage being established, and the building being found to have been erected in accordance with it, the rights of the parties stand on the same footing that they would if it were a building erected to carry on trade, or for other purposes, where, by the common law, the -tenant would have the privilege of removal. Van Ness vs. Pacard, supra.
The rule in such cases is, that the tenant may remove his fixtures at any time during the term, or even after its expiration, provided he yet remain in possession; but if he quit the possession without such removal, it is considered an abandonment of his right. Case last cited, and Penton vs. Robart, 2 East., 88. It is contended that the alleged nonpayment of rent, and the assignment of the lease and under-letting of the premises by the tenant to the defendant, as a further security for the money loaned by him, without the consent of the plaintiff being first obtained in writing, was a forfeiture of the lease, by which the term expired before the action was commenced, and that, therefore, the right of removal was gone. ■ The lease contains a covenant for the payment of rent at the times therein specified, and against assigning or underletting the premises, and provides that if the lessee make default in any of the covenants, he “ shall forfeit all right and title to the lease and the premises therein demised, and every part thereofand that in that event, it shall be lawful for the plaintiff to re-enter and repossess himself of the same, and expel the lessee therefrom. The objection to the argument is, that the case only shows a cause of forfeiture, and for the expulsion of the tenant, but does not show that he, or those who claim under him, *173have been, in fact, expelled, or that the plaintiff has re-entered, or repossessed himself of the premises. The tenant, and those claiming under him, were still in possession, claiming the right to hold under the lease, and until it was judicially determined that a forfeiture had taken place, and he and they were ousted, and the plaintiff repossessed by legal process, the term was not expired, and the right of removal remained.. In Penton vs. Pobart, the original term had expired, and the landlord had recovered judgment in ejectment against the tenant, but the tenant remained, in fact, in possession, and being so, the court held that he was not liable, in an action by the landlord, for removing fixtures, erected for the purpose of trade, and that he might lawfully do so. It appears to us, therefore, that the equities of the complaint were fully answered, and that the plaintiff was not entitled to a continuance of the injunction, and that it should have been dissolved.
[Note. — In relation to leases for years, as well as those for life, the happening of a came of forfeiture, does not render tho lease void, but voidable only, at the election of the lessor. Olark vs. Jones, 1 Denio, 516" court="None" date_filed="1845-10-15" href="https://app.midpage.ai/document/clark-v-jones-6142292?utm_source=webapp" opinion_id="6142292">1 Denio, 516. Although by the condition of a lease it is provided that if any of the covenants on the part of the tenant are broken, the unexpired term shall cease, if the lease also contains a clause that, in case of the non-performance of such covenants, the landlord may re-enter, the lease is voidable only at the option of the landlord, upon a broach of such covenants, but is not void. Bbuyvescmt vs. Dmis, 9 Paige Ch., 427" court="None" date_filed="1842-03-01" href="https://app.midpage.ai/document/stuyvesant-v-davis-5548632?utm_source=webapp" opinion_id="5548632">9 Paige, 427. Such a clause in a lease is a condition, and cannot be construed as a limitation. The Fifty Associates vs. Howland, 11 Met., 99. A breach in the condition of a deed, which is not a limitation, but gives a mere right of re-entry, does not avoid the estate. The estate is terminated in such a case by the re-entry of the lessor. Si»®?' vs. Fuller, 8 N. H., 174; 11 Met., xu/pra; Arnsbyvs. Woodward, 6 Barn. & Cress., 519. To entitle the lessor to re-enter for non-payment of rent, the common law required a demand of the exact rent due, on the day it fell due, at a convenient time before sunset. Van, Bensselaer vs. Jewett, 2 Corns., 141; Jackson vs. Harrison, 17 Johns. 66" court="N.Y. Sup. Ct." date_filed="1819-08-15" href="https://app.midpage.ai/document/jackson-ex-dem-wuldon-v-harrison-5474203?utm_source=webapp" opinion_id="5474203">17 John. 66. A court of equity will not, generally, lend its active aid to enforce a forfeiture (Baxter vs. Lansing, 7 Paige Ch., 350" court="None" date_filed="1838-12-18" href="https://app.midpage.ai/document/baxter-v-lansing-5548388?utm_source=webapp" opinion_id="5548388">7 Paige, 350), but regards the clause of re-entry for the non-payment of rent as a mere security for its payment, and will interfere in the tenant’s behalf, upon his satisfying the rent due, and any damages which the landlord may have sustained by his default. Taylor’s Land, and Ten., 326; Story’s Eq. Jur., § 1315. — Rep.]
The order of the circuit court is reversed, with costs.