Roussel v. Kelly

By the Court, Sprague, J.: The record in this case presents the question whether, in an action under the Act of April 27th, 1863, “ concerning forcible entries and unlawful detainers ” (Stats. 1863, p. 652), for the recovery of possession of leased premises, with rents due, by the landlord against the tenant, on the ground of failure by the tenant to comply with the covenant of his lease, as to payment of rent, and his further failure to pay the rent due within three days after demand thereof, and for possession of the premises by.the landlord, a subsequent tender by the tenant to the landlord of the full amount of rent due, with interest and costs and expenses of suit, set up in the answer, is any valid or permissible defense to such action.

It may be admitted that, at common law, in an action by the landlord to recover from his lessee the possession of the leased premises, and enforce a forfeiture of the tenant’s estate therein, by reason of his breach of a covenant in his lease to pay rent, a defense of the character here set up would be good and valid. But the remedy sought to be enforced in the present action is provided by statute, which definitely fixes and prescribes the rights and responsibilities [362]of the parties in the premises; and it is not within the legitimate province of a Court to limit or enlarge the remedy, or to restrict or extend the rights of parties clearly within its provisions.

The third section of the statute declares that “ it shall be unlawful for any person to hold over any lands, tenements, or other possessions * * * contrary to the covenants of the lease or agreement under which he or she holds, or after any rent shall become due according to the terms of such lease or agreement, and shall remain unpaid for the space of three days after the same shall become due as aforesaid.”

Section four provides that “in all eases specified in the preceding section, the landlord may, at any time within one year after such rent shall become due and remain unpaid, * * * make demand, in writing, of such tenant or tenants, that he, she, or they deliver the possession of the premises held as aforesaid; and if such tenant or tenants shall refuse or neglect, for the space of three days after such demand, to quit the possession of such lands or tenements, * * * or to pay the rent, in' case the term has not expired, but rent remains unpaid, then such tenant or tenants shall be deemed guilty of an unlawful detainer.”

Thus, it will be seen, by the third section of the Act it is declared unlawful for the tenant to hold the possession of the leased premises for more than three days after rent shall become due from him by the terms of his lease and remain unpaid. And the'fourth section declares that if the tenant shall, after rent is due from him and remains unpaid, refuse or neglect, for the space of three days after demand by his landlord, in writing, that he deliver possession of the premises to quit such possession, or to pay the rent due, in case his term has not expired, he “shall be deemed guilty of an unlawful detainer.”