Baker v. Clifford-mathew Inv. Co.

Decision Date30 May 1930
Citation128 So. 827,99 Fla. 1229
CourtFlorida Supreme Court

Commissioners' Decision.

Error to Circuit Court, St. Johns County; George Wm. Jackson Judge.

Action by the Clifford-Mathew Investment Company against John Baker. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

BROWN J., dissenting.


George W. Bassett, of St. Augustine, for plaintiff in error.

Lee Guest, of Jacksonville, for defendant in error.



The defendant in error filed its petition in the circuit court in and for St. Johns county, alleging that the plaintiff in error, unlawfully and against its consent, withheld from it certain real estate therein particularly described; and prayed restitution of possession and damages. The cause was heard before a jury; and at the conclusion of the testimony of the petitioner, the plaintiff in error made a motion that the court direct a verdict in his favor, which motion was denied; and thereupon the petitioner moved the court for a directed verdict on its behalf, which motion was granted by the court. A verdict was rendered in accordance with the directions of the court, a motion for new trial was made by the plaintiff in error and denied by the court, and judgment was entered in favor of the defendant in error. The case is now here upon writ of error.

The plaintiff in error has assigned sixteen assignments of error two of which are based respectively upon the granting of the motion for a directed verdict on behalf of the plaintiff and the ruling of the court denying the motion for a new trial.

It was developed in the trial that the plaintiff in error entered upon the premises under and by virtue of a lease which was executed by one J. A. Lew, as lessor, which said lease was to run for the term of eleven years from the 1st day of August, A. D. 1927, the lessee yielding and paying therefor the yearly rental of $3,000 per year for the first six years and $3,600 per year for the last five years, $250 to be paid on the first day of each and every calendar month during the first six years, and $300 per month on the first day of each and every calendar month during the last five years.

It seems to us that the all-important question to be determined is: Does the evidence disclose that there was such a termination of the leasehold estate of the plaintiff in error that his holding of the premises will be deemed wrongful? The lease provides, among other things:

'That a substantial breach of any of the covenants or conditions of this lease shall render it voidable by Lessor, in which case, or in case default shall be made in the payment of the rental as aforesaid, then the said Lessee shall become a tenant at sufferance, the Lessor thereby having the right to immediately enter and take possession of said property without process of law, and may thereupon expel and remove said Lessee and any one claiming under him and his effects.'

This instrument conveyed to the lessee a leasehold estate in said premises during the life of the lease which for all 'practical purposes is equivalent to absolute ownership.' Rogers v. Martin, 87 Fla. 204, 99 So. 551, 552.

A tenancy for years terminates by the mere expiration of the period for which the premises are demised; and may sooner come to an end by the holder of the lease and the lessor entering into a good and sufficient agreement to that effect, by merger in a greater estate, or by forfeiture. It is not contended here that the period for which the property was leased has expired or that there has been a merger of the leasehold estate in a greater estate. Evidently the theory upon which defendant in error sought to obtain possession of the premises was that by not paying the rent that was due on the 1st day of February, 1928, the plaintiff in error had forfeited his leasehold estate therein, and that thereafter he was but a tenant at sufferance.

'A tenancy at sufferance is said to exist where a person comes into possession of lands lawfully, and after his estate has ended holds over wrongfully.' 18 A. & E. Enc. of Law (2d Ed.) 177. See, also, 1 Underhill on Landlord and Tenant, 226; 35 C.J. 1134; 1 Tiffany, Landlord & Tenant, 151.

For us to hold that the plaintiff in error wrongfully held over or wrongfully retained possession of the land, we must also hold that his leasehold estate was duly forfeited because of his nonpayment of rent when due and payable. If his rights under and by virtue of the lease were not, in the eye of the law, forfeited, then the estate created by the lease is not at an end and he was not, at the time of the filing of the petition herein, a tenant at sufferance; but was rightfully in possession of the property.

Forfeiture clauses are not favored in either law or equity (18 A. & E. Enc. Law [2d Ed.] 371), and in 1 Underhill on Landlord and Tenant, p. 643, the author says:

'The rule seems firmly established by all the decisions both in England and America that however absolute and certain the words of forfeiture may be, even though they shall expressly declare the lease null and void or at an end, they will be always construed as meaning that it is voidable merely and this at the option of the lessor.'

'Where the right to maintain an action to recover possession of the premises is based upon nonpayment of rent, a formal demand for payment must be made therefor before the action is brought, unless the necessity therefor has been removed by statute, or unless the lease provides that the tenancy shall be determined without demand. Where a forfeiture has been waived, a demand must be made after a new breach. The requisites of a formal demand at common law are the making of a demand, by the landlord or his duly authorized agent, of the exact amount of rent due on the day it is due, at a convenient time before, and continuing actively or constructively until, sunset, at the most notorious place on the demised premises, except where the rent is made payable at some other place, in which case demand must be made there.' 36 C.J. 608. To the same effect, see 2 Taylor's Landlord and Tenant (9th Ed.) 84; 2 Tiffany, Landlord and Tenant, 1377; 1 Underhill on Landlord and Tenant, 633; Van Rensselaer v. Jewett, 2 N. Y. 141, 147.

In Connor v. Bradley, 1 How. 217, 11 L.Ed. 105, it is said:

'It is a settled rule at the common law, that where a right of re-entry is claimed on the ground of forfeiture for nonpayment of rent,...

To continue reading

Request your trial
27 cases
  • Com., by Creamer v. Monumental Properties, Inc.
    • United States
    • Pennsylvania Supreme Court
    • December 5, 1974
    ...the lessee's interest is tantamount to absolute ownership of the premises for the term. E.g., Baker v. Clifford-Matthew Investment Co., 99 Fla. 1229, 1231, 128 So. 827, 829 (1930) (per curiam); Rogers v. Martin, 87 Fla. 204, 206, 99 So. 551, 552 (1924); Pierce v. Pierce, 351 Ill.App. 336, 3......
  • In re Moore
    • United States
    • U.S. Bankruptcy Court — Northern District of Alabama
    • March 25, 2003
    ...Sales Co., 214 Ala. at 518, 108 So. at 259; Rader v. Prather, 100 Fla. 591, 595, 130 So. 15, 17 (1930); Baker v. Clifford-Mathew Inv. Co., 99 Fla. 1229, 1232-34, 128 So. 827, 829 (1930). Just as foreclosure with respect to the real property ends equitable redemption in many jurisdictions, t......
  • In re Thrifty Dutchman, Inc.
    • United States
    • U.S. Bankruptcy Court — Southern District of Florida
    • August 17, 1988, a lease terminates in several ways. One such way is upon the expiration of the lease term itself. See Baker v. Clifford-Mathew Investment Co., 128 So. 827, 99 Fla. 1229 (1930). Upon the expiration of a lease term, the very terms of a lease terminate and/or expire, and the landlord's in......
  • Masser v. London Operating Co.
    • United States
    • Florida Supreme Court
    • November 2, 1932
    ... ... Compiled General Laws of Florida, 1927 ... In ... Baker v. Clifford-Mathew Inv. Co., 99 Fla. 1229, 128 So ... 827, 830, we said that the Legislature, in ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT