Sauer v. Meyer
Before: Belcher
Synopsis
Ejectment — Evidence — Right of Possession. —To maintain an action of ejectment, the plaintiff must show that he was entitled to the possession of the demanded premises at the time he commenced the action.
Id.—Landlord and Tenant—Forfeiture of Lease — Non-payment of Rent — Demand — Right of Re-entry. — To give a landlord a right of re-entry for non-payment of rent, a demand of the rent, upon or after the last day on which the lessee has to pay, is essential to complete the forfeiture and enable him to maintain an action of ejectment.
Id. —Forfeitures not Favored. .— Forfeitures are not favored; and where the right of possession of the landlord depends upon the forfeiture of the lease, the conditions of tha lease involving the forfeiture must he strietty interpreted against him.
Id. — Waiver of Forfeiture — Extension of Time for Payment. — An agreement that rent due for several months shall stand unpaid until a future month is a clear waiver of any forfeiture for non-payment of rent during those months, and no right of re-entry could accrue until the time stipulated in the lease has elapsed after demand of rent at the expiration of the extended time.
Id.—Premature Action against Sublessee.—Under a lease providing for the payment of rent monthly in advance, and for a right of re-entry by the landlord if any rent should he due and unpaid for ten days after the same should have been paid, and giving the lessee the right to sublet, where the lessor agreed with the lessee that the rent due for three months should stand unpaid until the first of the next month, and demanded of the sublessee the rent due on the first of such month, an action of ejectment against the sublessee, commenced four days after the demand, is prematurely brought.
Belcher, C. C. This is an action of ejectment. The court below gave judgment for the defendant, and the plaintiff appeals on the judgment roll.
The facts of the case, as found by the court, are in substance as follows: In November, 1883, the plaintiff leased the demanded premises for the term of ten years and one month from the first day of December following, the rental during the last five years of the term to be “forty dollars per month, payable in gold coin on the first of each and every month, in advance.”
The lease provided that at the expiration or sooner determination thereof the lessees should have the right to remove from the premises all improvements placed thereon by them, and to sublet the premises, or any part thereof, and “that if any rent shall be due and unpaid for the period of ten days after the same should have been paid under the conditions hereof, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part to re-enter the said premises and remove all persons therefrom in the manner prescribed by lawn”
During the year 1889, the defendant was in possession, as sublessee, of one half of the leased premises. On the first day of October of that year, the whole rent, $120, for the months of August, September, and October was then due and unpaid, and on that day the plaintiff agreed orally with the plaintiff’s lessor, who was one of the original lessees, that the same should stand unpaid until the first day of November following.
[36]On the first day of November the plaintiff demanded of the defendant the payment of all rents then due, and the defendant denied that he owed plaintiff, and refused to pay anything.
On the fourth day of the last-named month, this action was commenced, and on that day, before defendant knew of its commencement, he offered to pay the amount due plaintiff for rent under the lease, and asked the amount due, and told her he was ready to give her a check for the same on a local bank, in which he had money sufficient to pay the sum due. The plaintiff refused to tell defendant the amount due, but made no objection to the offer of payment by check.
On the twenty-sixth day of November, and before defendant filed his answer herein, be offered in writing to pay to the plaintiff the sum of $160, in gold coin, the same being the amount due for rent under the lease up to and including that month, and the plaintiff refused to accept the same, but specified no objection thereto.
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