Skaggs v. Emerson

By the Court, McKinstry, J.: We shall assume that the demand on notice of the 18th of September, 1873, was in proper time.

[6]It is not necessary to inquire whether the plaintiff would be entitled, in any form of action, to recover the possession of the portion of the premises admitted to have been retained by defendant; for it is clear that he should not have judgment in this action unless the lease was forfeited by defendant’s failure to pay rent, the notice and demand. Upon the forfeiture the plaintiff must rest as his ground for any judgment, and he claims that the forfeiture arose from non-payment. But if the averments of the answer, which were stricken out by the court below, are true, no recovery could be had upon the covenant to pay rent since defendant had been evicted by plaintiff from a substantial part of the demised premises. The covenant to pay rent is entire, and cannot be severed or apportioned. (Camarillo v. Fenlon, 49 Cal. 202; Taylor’s Landlord and Tenant, Secs. 315, 378, and cases there cited.) There can be no apportionment, because the partial eviction is the wrongful act of the landlord himself, and no man should be encouraged to disturb a tenant in the possession of that which, by the policy of the feudal law, he ought to protect and defend.

If a landlord is unable to give possession of all the lands described in the lease, and the tenant chooses to accept part, he may be compelled to pay the reasonable value of the use and occupation of that part. In such case the lease may be regarded as abandoned by both parties. (Camarillo v. Fenlon, supra.) But the position of the present defendant is different. The lease was not terminated by the wrongful eviction by the landlord of the lessee; he still continued to occupy the part from which he had not been evicted, under and by virtue of the written lease. (Leishman v. White, 1 Allen, 489.) He retained the right to occupy until the expiration of the term, paying no rent while the partial eviction continued. As he was not liable to pay rent if the averments of the answer were true, the lease was not forfeited by reason of the non-payment, whatever notice or demand was given or made.

Order overruling defendant’s demurrer to plaintiff’s amended complaint; order sustaining plaintiff’s demurrer to defendant’s answer, and order overruling defendant’s objec[7]