2 Ga. 124 | Ga. | 1847
By the Court.
delivering the opinion.
And an eviction of the tenant upon a title paramount to the landlord’s, will excuse the tenant from payment of rent. Idem Auct. Also, Crabb’s Law of Real Property, t. p. 152 ; Gilb. Rents, 145.
By the law of Scotland, upon the hire of property, a loss or injury to that property, which is not occasioned by the fault or ireg
The reason in equity is, that in case of the destruction of the property, the loss of the rent must fall somewhere, and there is no more equity that the landlord should bear it than the tenant, when the tenant has expressly agreed to pay it, and when the landlord must bear the loss of the property destroyed. Equity considers the calamity mutual. She will not interfere to relieve against the express contract of the tenant. So that, notwithstanding the opinion of Puffendorff, the authority of the Civil Law, and even some adjudications in England and in this country, we consider the rule established as we at first laid it down.
As early as the reign of Henry VIII this question was mooted at law, and in the case of Taverner it was left unsettled. 1 Dyer’s R. 55, 56. In the reign of Charles I, the Court of Kings’ Bench held, that where the rentor had been driven from the premises by public enemies, viz. Prince Rupert and his soldiers, he could not plead it in bar of the rent. Chancellor Rent, after reviewing the authorities, declares: “ It is well settled that, upon an express contract to pay rent, the loss of the premises by fire, or inundation, or external violence, will not exempt the party from his obligation to pay rent.” 3 John. R. 44; 4 Taunt. R. 45; Pollard vs. Shaffer, 1 Dall.
The reasons upon which the decisions at law have gone, are, that it is competent for a party, in his contract, to stipulate against payment in case of fire, or other casualty, or violence; and, having failed to do so, he cannot take advantage of his laches. The contract is an exécuted one; the tenant is in the position of a purchaser of the premises for the term; he is let into the possession, and the landlord has no right to enter or in any way molest him. And, as in all other express, unconditional contracts, both parties must abide their solemn act.
The rule, too, is not without foundation in policy. It secures, on the part of the tenant, that carefulness and vigilance which is necessary to the safety of the owner’s property whilst he is out of possession, and whilst it is under the absolute control of one who has only a temporary interest in it. If the destruction by fire would excuse the payment of rent, then might the tenant, so far as pecuniary interest is concerned, become careless to protect it. The owner would be left to rely upon the tenant’s sense of moral obligation, which unfortunately is not, in all men, so just or so strong as to constrain them to do right. Indeed there are men to be found base enough to burn down a house, to get rid of the payment of rent, if their interest might thereby be subserved. The contrary of this rule would therefore operate in restraint of renting. Let the judgment of the Court below be affirmed.