Davis' Adm'r v. Smith

• Decision Date: 31 January 1852
• Court: Missouri Supreme Court
• Parties: DAVIS' ADM'R v. SMITH & BRADLEY.

15 Mo. 467

DAVIS' ADM'R

v.SMITH & BRADLEY.

Supreme Court of Missouri.

January Term, 1852.

ERROR TO LAFAYETTE CIRCUIT COURT.

LEONARD, for Plaintiff. 1. It is a principle of natural justice that one who hires the use of property with a view to no other benefit except what may be derived from the use of it, shall not be liable for the rent after the property has been destroyed without any fault on his part. Rutherford's Inst. 127. This principle, made part of the civil law, was introduced into the Code Napoleon, art. 1722, and the Civil Code of Louisiana, art. 2267. It is now the law of Scotland, 1 Bells. Com. 452, and produced the Egyptian law, which provided that if the violence of the Nile should wash away part of the leased land, the rent should be proportionally abated. Puffendorf, book 5, ch. 6, § 2. This, too, is the principle of the common law in relation to the hiring of personal property: Story on Bailments, §§ 383, 384; Harrington v. Snyder, 3 Barb. S. C. R. 380, and English Chancellors formerly struggled hard to incorporate it into the law of that court in reference to real-estate. 1 Chan. Cases, 83; Brown v. Quitter, 2 Ambler's R. 619. 2. Although the old common law authorities, admitting that “““eviction of title” extinguishes the rent, declare that the destruction of the property itself leaves the tenant still bound, yet the point now presented is not bound by these decisions. Here, the court, assuming that the leased property perished by reason of an inherent defect not apparent to ordinary observation, declared that this furnished no ground of relief against the payment of the rent, applying the hard rule that governs when the property perishes by an overruling force, to the case where it perishes of an inherent defect. The law will imply a warranty on the part of the lessor that the premises are in a tenantable condition, or if that is not allowable, it must be assumed that the contract is entered into by both parties upon the faith that they are in that condition; and if they are not, that is a good answer to the rent in whole or in part, according to the facts. Smith v. Marrable, 41 Eng. C. L. R. 363; Shepherd v. Pybus, 42 Eng. C. L. R. 452; Corvie v. Goodwin, 38 Eng. C. L. R. 162; Ripley v. Wrightman, 4 McCord's R. 448.

HAYDEN, for Defendants. 1. The lease of the demised premises was a conveyance of the lessor's interest therein for the term of eight months and ten days to the lessee, Smith, in consideration of the rent agreed upon in that instrument, and there is no covenant, either express or implied, in the contract that the tenants, &c., were sound and durable, or that they would endure or continue during the whole or any particular part of the term, to answer the objects and purposes for which the said Smith rented them, and therefore the said defendants, under the circumstances of this case, have no right to the deduction from the rent claimed and demanded in their answer. As to the interest in the demised premises, conveyed by the lessor to the lessee: Archbold on Landlord and Tenant, 31, 32. 2. It was competent for the defendants in this case to have stipulated against the payment of rent upon the happening of the event which has taken place, and, having failed to do so, they cannot take advantage of their laches. The contract is an executed one on the part of the lessor, and the defendants, as tenants under it, are in the position of a purchaser of the premises for the term; and, as in all other express and unconditional contracts, both parties must abide their solemn acts. It is well settled in England and in the United States, that neither a court of law nor a court of equity will relieve against an express contract to pay rent, upon the ground that the premises have been destroyed by fire or any casualty whatever, unless there is an express stipulation to that effect. 2 Kelly's R. 126, and following; 2 Strange, 763; 3 Kent's Com. 465-8; 3 Johns. 44. There is no reason why the lessee should...