Brooks v. Rodgers

• Citation: 99 Ala. 433,12 So. 61
• Parties: BROOKS v. RODGERS.
• Decision Date: 16 December 1892
• Court: Supreme Court of Alabama

12 So. 61

99 Ala. 433

BROOKS v. RODGERS.

Supreme Court of Alabama

December 16, 1892

Appeal from circuit court, Montgomery county; John P. Hubbard Judge.

Ejectment by Charlotte Thompson Rodgers against John D. Brooks. From a judgment in plaintiff's favor, defendant appeals. Reversed.

Among other charges asked by the defendant, and to the refusal to give each of which he separately excepted, were the following: (12) "The court charges the jury that the execution and delivery of the contract of January 22, 1891 made by and between the plaintiff and defendant, was a waiver by the plaintiff of all forfeiture of said lease of March 15 1888, which occurred prior to said 22d day of January, 1891 and if you believe from the evidence that said contract was executed and delivered on its date, January 22, 1888, and if you further believe that no forfeiture of said lease of March 15, 1888, was committed by said defendant after said 22d day of January, 1891, then you must find for the defendant in this cause." (13) "The court charges the jury that if they believe from the evidence that the plaintiff was informed of the breach of said lease of March 15, 1888, on and prior to the 1st day of October, 1891,and that on that date the plaintiff accepted from the defendant the rent for said plantation for the year ending on the 1st day of January, 1892, and that no breach of said lease was committed by defendant after the 1st day of October, 1891, then the jury must find for the defendant in this cause."

Richardson & Reese, for appellant.

Arrington & Graham, for appellee.

COLEMAN J.

The suit is the statutory action of ejectment. The plaintiff in the court below, Charlotte Thompson Rodgers, leased her plantation to defendant Brooks for a term of five years, to begin on the 1st day of January, 1889. The consideration of the lease was the annual payment of $1,100, "to be paid on the first day of October of each year during the continuance of the lease," and the consideration was further evidenced by the execution of five several promissory notes, in accordance with the stipulation in the lease contract. The lessee covenanted to keep the ditches, drains, fences, and houses in repair, that he would not cut down or destroy any of the wood or timber on the premises, except such as was necessary for plantation purposes, and then only from designated places, and that no land should be cleared except at a specified point. The lease provided "that, in case the party of the second part shall violate any of the conditions, covenants, or stipulations imposed on him or agreed to by him, *** the party of the first part, upon first giving ten days' notice thereof in writing to the party of the second part, may by themselves or agents re-enter said premises, and enjoy the same in all respects as though the lease had not been made." The lessee paid his rental notes at maturity for the years 1889, 1890, and 1891. On the 19th of November, 1891, after the payment of the rental note for that year, the plaintiff served a written notice of forfeiture upon the defendant, After setting out the covenants of the lease in regard to the cutting of timber and wood and the clearing of land the notice proceeded as follows: "And whereas, you have violated the conditions, covenants, and stipulations above mentioned, contained in said lease, by cutting and destroying wood and timber on said premises; *** and whereas, you have cleared wood or timber lands," (setting out the place, so as to show the clearing was at a different place from that authorized by the lease.) Then follows the notice, as provided in the lease, that after 10 days the plaintiff would re-enter, etc. It will be observed that in the notice served upon the defendant there is no reference to a breach of any of the covenants of the lease in regard to the ditches, fences, and repair of buildings, but the notice places the forfeiture and right to re-enter upon a violation of the covenants in regard to the cutting and destroying of the timber and clearing of land. The suit is ejectment, and was instituted on the 7th of December, 1891, although the rent for the entire year of 1891 was paid and received by the plaintiff on the 1st of October, 1891.

The evidence tended to show that the acts complained of as a violation of the covenants of the lease not to cut or destroy the timber or clear the land occurred in December, 1890, and during the early part of the year 1891. Under the contract of lease the lessee held but an estate upon condition. Upon breach of the covenants he forfeited his estate at the option of the lessor, who, upon giving the notice stipulated in the contract, had the right to re-enter. The lease was not rendered absolutely void by the act of forfeiture, but upon the election of the lessor. The lessee had no option under the contract. If, after the breach of the condition of the lease, the lessor, with a full knowledge of the breach of the condition and all the circumstances, demanded and received from the lessee, under the contract of lease, rents which accrued subsequent to the breach, this was a clear recognition that the relation of lessor and lessee continued for the time for which the rent was paid and received. A lessor cannot be...