McKnight v. Kreutz

51 Pa. 232 | Pa. | 1866

The opinion of the court was delivered, by

Strong, J.

A very large number of errors have been assigned in this case, most of which are without any substantial foundation. A considerable portion of them rest upon the assumption that the estate demised to the plaintiff below was upon condition that he should so exercise his right as not to injure or endanger the surface of the land, or obstruct the watercourse. In our opinion, however, the assumption is not well made. There is nothing in the words of the lease that can by any just construction be regarded as making the tenure of the lessee dependent upon his compliance with any other covenants than those which relate to the rent. The utmost that can be made of the stipulation that the lessee should dig coal in such a manner as to do no injury to the surface of the land, and not spoil the coal itself, is that it constitutes a covenant, the breach of which may subject the lessee to liability for damages, but not to forfeiture of his estate. Conditions that work forfeitures are not favourites of the law, and nothing less than a clear expression of intention that a provision shall be such, will make it a condition upon which the continuance of an estate granted depends. Here there is no such intention apparent. True, in providing a mode by which the stipulation might be enforced, the parties speak of it as a condition, but it is evident they used the word in a sense in which it is often used, that of understanding, agreement, or covenant. That it was not intended to be a cause of divestiture of the estate of the lessee, is plain from the fact that there is no declaration that doing injury to the surface or spoiling the coal should work a forfeiture, while in regard to breaches of other covenants there is such a declaration. Having expressed for what causes a forfeiture might be claimed, it is not to be inferred that there are any grounds of forfeiture not declared to be such. We hold then that the estate of the lessee was not made dependent for its continued existence upon his compliance with the requirement that the surface of the land should not be injured or endangered. Hence there was no error in refusing to affirm the defendants’ first point, and none in rejecting the evidence described in the first, second and third bills of exceptions. The evidence offered was immaterial to the issue, if not inadmissible for other reasons.

Nor can the fifth and twelfth assignments of error be sustained. The lease gave to the plaintiff below the right of possession primarily for four years. If by non-compliance with the conditions of the demise, he had forfeited the term after it had been vested in him, that was a fact to be proved by the lessors who asserted the forfeiture. The question as to the mode of proof of non-compliance, or as to what was sufficient proof of it, is a different matter. To that the maxim “ de non apparentibus et non existentibus, eadem est ratio vel lex” may be applied. The court was, however, not asked to instruct the jury what was evidence of nonpayment of the rent, or what was evidence of failure to render sworn returns of the quantity of coal taken out each month. There seems to have been no evidence of any such returns, and therefore the law concludes none were made, nor was there evidence of any other payments of rent than those of July 15th, July 26th and September 21st 1861, and therefore no others were made. Nor could the jury, under the instructions of the court, have found any other, or that monthly statements were furnished, and we cannot presume that they did.

But the court should have affirmed in substance the sixth, seventh and eighth points presented by the defendants. The lessee bound himself to dig and remove from the land, at least seventy-two thousand bushels per annum, that is, each year of the term, and to pay for the same at the rate of seventy-five cents, for every hundred bushels of coal taken out, and to render sworn monthly returns, by which the rent due might be determined. And it was expressly stipulated that if he neglected or failed to com■ply with the covenants for payment for the coal, the lessors should he at liberty to determine the lease, and treat it as void. That he did not make such sworn statement, and that he did not annually take out and pay for seventy-two thousand bushels of coal, was conclusively established, and that the lessors had x-esumed possession was admitted by the ejectment. The possession of the lessors, in- absence of proof to the contrary, should have been presumed to have been in virtue of their right to retake the possession and terminate the lease, and there was error in submitting to the jux-y to find that there liad been a waiver of the right of the lessors to “ dissolve, terminate and annul the lease.” Conceding that the receipt of money on account of rent in the months of July and September 1861, was a waiver of the right to insist upon sivorn statements of the quantity of coal removed, which is probably more than ought to be conceded, there was no evidence of any waiver of the right of the lessors to insist upon the payment for seventy-two thousand bushels per annum each year of the texun. Yet from 1861 to 1864, the lessee paid nothing. He mined no coal; he paid for none. The lessors had a right therefore to treat the lease as a nullity, and their resuming the possession was thus treating it. So the jury should have been instructed, and they should not have been pei’mitted to find that the rights of the lessors to resume possession in default of such payment had been waived.

It is probable the attention of the court was directed mainly to the default of the lessee in furnishing the sworn statement required by the lease. That was but a part of his duty. Though he may have been relieved from that, he was not relieved from the obligation to pay for seventy-two thousand bushels annually, without which payment the lessors had the right to declare the lease void. This it must be presumed they did.

These observations dispense with the necessity of noticing in detail the remaining assignments of error. The eleventh is sustained, and the instruction of the court to which exception is taken in the tenth, unless it was intended as applicable only to the fifteenth, for want of sworn statements requires qualifications. Under the evidence as it was presented the plaintiff was not entitled to recover.

The judgment is reversed, and a venire de novo awarded.