Byrane v. Rogers

• Decision Date: 01 January 1863
• Citation: 8 Minn. 247
• Parties: AARON G. BYRANE vs. HIRAM ROGERS.
• Court: Minnesota Supreme Court

8 Minn. 247

AARON G. BYRANE vs. HIRAM ROGERS.

Supreme Court of Minnesota.

Smith & Gilman, for appellant.

G. Hewitt and Brisbin & Warner, for respondent.

FLANDRAU, J.

This action is brought to recover possession of certain demised premises, upon the ground that the lease is forfeited for non-payment of rent, and certain taxes and assessments. The case was not argued in court, nor has either party furnished us with points or authorities to aid our investigations. We are informed by the decision of the court below, that the case was decided there upon whether a demand for the rent was necessary under the lease, to entitle the lessor to take advantage of the forfeiture occasioned by non-payment, the court holding that such demand was waived by the terms of the lease. The question is presented by demurrer to the complaint. The lease was of lands in the City of St. Paul, for the term of twenty years, at a stipulated rent, payable quarterly, and also the payment by the lessee of all taxes and assessments levied or assessed upon the land. The covenant for re-entry for the breach of the lessees' covenant, is in the following words: "That if it shall happen that any installment of the rent hereinbefore reserved, shall not, with the interest accruing thereon, be paid to the said party of the first part, his heirs and assigns, without demand, within 30 days after the same shall have become due and payable, or at any time thereafter, if demanded, or if default shall be made in any of the covenants therein contained, on the part of the said party of the second part, his representatives or assigns, to be paid, kept or performed, then and in either case it shall be lawful for the said party of the first part, his heirs or assigns, into the said premises or any part thereof, to re-enter, and the same, with the improvements thereon at that time existing, to have again and repossess, as though this lease had not been made." The breach assigned is the non-payment of $139.12 rent, which is alleged to have been due more than thirty days, and also the non-payment of various sums, for taxes, which have accrued against the land.

We will first examine the question as to whether the terms of the lease waive the necessity of a demand of the rent before re-entry by the landlord for non-payment, and then whether any demand is requisite at all when the breach complained of is the non-payment of taxes. At the common law, when a landlord claimed a forfeiture for the non-payment of rent, it became his duty to make a demand of the rent in person, or by agent properly authorized. He must demand the precise sum due. He must demand it precisely upon the day when the rent is due. He must demand it at a convenient time before sunset. He must demand it upon the land, and at the most notorious place of it, and at the dwelling-house, if there is one, and at the front door of the house, unless a place of payment is mentioned, when it must be there demanded. He must demand it in fact, although there should be no person upon the land ready to pay it. Adams on Ejectment (4th ed.), 187. The precision which was required in the fulfillment of the prerequisites above mentioned, to enable a landlord to take advantage of a forfeiture for non-payment of rent, rendered it difficult and perplexing to succeed in this respect. It was evidently to avoid this that the stipulation waiving demand was inserted in the lease. The effect of the stipulation therefore is, that when the tenant fails to pay the rent for the space of thirty days after it becomes due, the landlord may re-enter at once without fulfilling the requirement of the common law, and claim his forfeiture; but he must claim his forfeiture at the time it accrues by re-entry or suit, or he will lose it in the same manner he would have done had a demand been necessary and he failed to make it. The demand is all that is waived, the intention to assert his rights under the forfeiture in every other particular, is as necessary as without the stipulation. It must be observed that the stipulation only waives the demand that the law requires on the day the rent is due; it expressly declares that if the landlord wishes to...