13 Gratt. 278 | Va. | 1856
It was properly conceded, in the argument of this case, on the one hand, that R. F. Darracott had incurred a forfeiture of his lease from John
The underletting in this case was without the consent of the lessor, either written or parol. And a forfeiture for assigning or subletting without license may be waived, whether the license be required by the terms of the lease to be in writing or hot. Goodright v. Davids, Cowp. R. 803; Roe v. Harrison, 2 T. R. 425, 430. It is unnecessary, therefore, to consider whether this case comes within the operation of the Code, p. 506, § 18; which declares that “ in a deed of lease a covenant by the lessee that ‘ he will not assign without license,’ shall have the same effect as a covenant that the lessee will not, during the term, assign, transfer or set over the premises or any part thereof, to any person without the consent in writing of the lessor, his representative or assigns.”
Then, as to the question of waiver of the forfeiture. The doctrine on this subject is thus laid down by an elementary writer: “ The re-entry resting, as we have seen, in the election of the lessor, he may enforce or waive his right at his pleasure. And as forfeitures, to use the phrase of the books, are odious in law, slight acts on his part have been deemed sufficient to amount to a waiver. Indeed, it may be stated as a general rule, that any recognition of a tenancy subsisting after the right of entry has accrued, and the lessor has had notice of the forfeiture, will have that effect.” 2 Platt on Leases 468. To the same effect is the law laid down by other writers; and the cases cited, so far as I have seen, seem fully to sustain them.
There is, indeed, no conflict of authority in regard to the principle which governs the case. The only apparent conflict is in its application to individual cases. The principle simply is, that if the lessor, with
There is a case, however, which was much relied on by the counsel for the plaintiff in error as an authority to show that the mere acceptance of rent is not of itself a waiver, but matter of evidence only to be left to the jury. I mean the case of Hoe v. Batten, Cowp. R. 243. That was not a case of forfeiture. The question was, Whether the landlord, by receiving rent, had waived his notice to quit, and created a new tenancy for a year; or had merely received an occupation rent, instead of double rent to which he was
But Doe v. Batten was cited, and the doctrine therein laid down disapproved by the Court of king’s bench, in Goodright v. Cordwent, 6 T. R. 219. Lord Kenyon, C. J. in delivering his opinion in that case, the other judges concurring, said, “If the defendant had paid, and the lessor of the plaintiff had received the money as a satisfaction for the injury done by the defendant in continuing on the plaintiff’s land as a trespasser, then the plaintiff might have recovered in ejectment. But if it were paid eo nomine as rent, and received as such, and the jury have found that it was so, I cannot assent to the doctrine laid down in the cases cited, that the receipt of rent accruing after the expiration of the notice to quit is not a waiver of it i for according to that doctrine, the same person might stand in the relation of tenant and trespasser to his landlord at the same time.”
In Blyth v. Dennett, 16 Law & Equ. R. 424, which was also a case of notice to quit, it was conceded that the acceptance of rent, accruing after the expiration of the notice, would have been a waiver of it; but no such rent had been received.
That Lord Mansfield did not intend, in Doe v. Batten, to question the principle that acceptance of rent accruing after forfeiture, with notice of the forfeiture, is a waiver of it, is conclusively shown by the case of Goodright v. Davids, Cowp. R. 803, decided only three years after the former. That was ejectment brought by lessor against lessee on the ground of forfeiture by subletting, contrary to a covenant and condition contained in the lease. The defense was that the forfeiture had been waived by the acceptance of rent.
The case of Jones’ devisees v. Roberts, 3 Hen. & Munf. 436, in which it was contended by the counsel for the plaintiff in error, that this court had approved the case of Doe v. Batten, was a suit for specific performance of an agreement for a lease, and there were many reasons for refusing to enforce the agreement, without relying on the doctrine of that case, which is incidentally referred to with seeming approbation by two of the judges. The question did not properly arise, and could not have been considered in the case.
ITothing done by the lessor before he has knowledge of the forfeiture can have the effect of waiving it. After he is informed of the forfeiture he must make his election, in view' of all the circumstances, whether he will waive or enforce it. He is not bound to elect immediately; but may take his own time to’ do so. Until he makes up his mind, however, he must take care to do no act which may have the effect of affirming or recognizing the continuance of the tenancy. He cannot first waive, and then enforce the forfeiture. The lessee cannot be a tenant and a trespasser at the
The waiver of one forfeiture is of course not a waiver of a.subsequent forfeiture: And if the act of forfeiture be continuing, a waiver of a right of reentry for one breach will not preclude a re-entry for a new or continuing breach. Thus, a lessor may take advantage of a forfeiture occuring de die in diem, as in the case of a neglect to repair, work a mine, or the like, continuing from day to day, notwithstanding „a previous distress for rent. 2 Platt on Leases 471, and cases cited. So also, where the covenant was that rooms should not be used for certain purposes, it was held that there was a breach of this covenant every day during the term that they were so used ; and that the lessor was not precluded by receiving rent subsequent to the commencement of such user, from taking advantage of the forfeiture, provided the user continued after such receipt of rent. Comyn 334; Doe v. Woodbridge, 9 Barn. & Cress. 376, 17 Eng. C. L. R. 399.
But a sublease is no more a continuing act of forfeiture than an assignment, notwithstanding what is said by Platt, Id. 472, that “ It does not appear to be settled whether an underletting is or is not a continuing breach.” The only authority cited for this observation is an obiter dictum of the V. C. in Dowell v. Dew, 1 Young & Col. 345, 366, 20 Eng. Ch. R. 345. But that dictum is plainly opposed to principle and the whole current of authority. The cases are numerous in which forfeitures by subletting have been held to be waived by the subsequent acceptance of rent. The case already cited from Cowper 803, is a case of that kind. There could have been no difficulty in enforcing the forfeitures in these cases if the breaches had been continuing. The only difference between an assignment and underlease in this respect is, that the
Having stated the legal principles which I deemed pertinent, it now only remains to apply them to the case. It is certain that Johnston never assented to the underletting to John Darraeott, or affirmed or recognized his tenancy; but that he always refused to do so. It is, I think, equally certain that he did affirm and recognize the continuance of the tenancy of E. F. Darraeott, with full knowledge of the forfeiture. He was fully informed on the 2d of May 1855 that the premises would be sublet to John Darraeott on the 15th of that month; and again, on the 15th, was informed that they had accordingly been sublet. On the 2d of July he demanded the rent of E. F. Darracott, a quarter’s rent having, on the preceding day, become due under the lease. On the 3d of that month he received two hundred dollars, and signed a receipt for it, in part of rent to the first of the month. On the 5th or 6th of the month he sued out a distress warrant against E. F. Darraeott for five hundred and fifty dollars, balance of the quarter’s rent due on the first of the month, having first made the necessary affidavit that the said balance was justly due him, “ for rent reserved upon contract from the said E. F.
I conclude, then, that these acts were a waiver of the forfeiture: and the waiver, having once been
I am for affirming the judgment of the Circuit court.
The other judges concurred in the opinion of Moncure, J.
Judgment affirmed.