51 So. 633 | Ala. | 1910
— As the solicitor for complainant (appellant) concedes, the theory of the bill confesses a forfeiture under the terms of a 10-year lease made between complainant and the respondent’s assignor, and, so confessing, invokes equity jurisdiction for relief
Mrs. Robinson, respondent’s assignor and grantor, owned a vacant lot in Birmingham. She leased it to complainant for 10 years, the termination of which was to be December 31, 1909. The consideration of the possession, use, and enjoyment of the lot was stated to be the erection within 90 days and without cost to the lessor of a described brick building on the lot and the payment to the lessor of $20 each month during the continuance of the lease. After about eight years of the term had expired, the respondent declared the lease forfeited because of breaches of the conditions whereon the life of the lease was expressly made to depend of course upon the option of the lessor or her successors in right. These breaches of the covenant were enumerated in the notice exhibited in the bill, and the reporter will summarize them.
There would.be no hesitancy in upholding the equity of this bill if the result -of the lessee’s omission was to breach covenants intended to assert the prompt payment of money rent, and this without reference to whether the lessor had entered or not. — Attalla Mfg. Co. v. Winchester, 102 Ala. 184, 14 South. 565; Root v. Johnson, 99 Ala. 90, 10 South. 293. But the situation in this instance involves more .than that. It is evident from the lease -that the use for the time of the lessor’s lot was to be largely compensated for by the edifice to be placed on it. The termination of the term would leave the lessor with a lot improved by the building so erected by the lessee.. Contracting, as they did, with reference to such a status, it was well anticipated to the lessor’s protection that maintained repair and sanitation should be particularly required, even to the end
Aside from the controverted breach of the covenant in respect to sanitation, the bill does not deny want
There is an allegation that complainant was lured into inattention to these repairs by the “uniform conduct and treatment of his former and present landlord.” This averment is obviously short of an allegation of a waiver of the breaches on which the forfeiture was based. Besides, the instrument requires a waiver to be “expressly agreed” upon, and concludes against a waiver by mere inaction or by the extension of time for performance of the covenants.
There is no equity in the bill. The decree must be affirmed.
Affirmed.