O'Connor v. Kelly

By the Court, Temple, J.: * The defendant was the tenant of one Murphy, from whom he had á lease of the premises sought to be recovered in this action for the term of five years, paying a rent of six dollars per annum. Before the expiration of the lease, Murphy conveyed to plaintiff, who sent his clerk to defendant to demand the payment of rent, which being refused, this action was commenced, being ejectment.

It does not appear that the defendant had notice of the conveyance of the premises to the plaintiff, or that, at the time he refused to pay rent, he had any knowledge-of that fact whatever. From the evidence of Byan, through whom the demand was made, the contrary is to be inferred.

By the terms of the lease, Murphy could put an end to the term before the expiration of five years, upon the payment of a certain sum of money to Kelly.- The lease, also, contained the usual covenant for a forfeiture in case of nonpayment of rent. Demand was not made for any particular sum, nor was there any other refusal than a statement that he did not acknowledge O’Connor in the matter, and did not wish to pay rent to him. In fact, he did not know him. He was not informed of the conveyance to O’Connor, nor did he deny the tenancy or set up any claim in himself. He did just what any tenant ought to do when called upon to acknowledge the title of a stranger and pay rent to him. If leases could be forfeited by making a secret assignment of the lease and demand made by the assignee, without making known the fact of assignment, no tenant would ever be safe. By doing just what appears to be his duty to his landlord he might forfeit his estate.

The failure to make demand of the amount due was also fatal to the plaintiff’s case. (Gage v. Bates, 40 Cal. 384.)

Judgment reversed and cause remanded for further proceedings.