Heighes v. Porterfield

• Decision Date: 29 March 1923
• Docket Number: No. 2759.,2759.
• Parties: HEIGHESv.PORTERFIELD ET AL.
• Court: New Mexico Supreme Court

28 N.M. 445

214 P. 323

HEIGHES

v.PORTERFIELD ET AL.

No. 2759.

Supreme Court of New Mexico.

March 29, 1923.

Syllabus by the Court.

Taking possession of the leased premises by the landlord, merely for the purpose of protecting the property, upon the abandonment thereof by the tenant, does not constitute an acceptance of the surrender of the lease by the tenant.

Appeal from District Court, Bernalillo County; Hickey, Judge.

Action by Wm. B. Heighes against Joseph Porterfield and another. From an order sustaining a demurrer to the complaint and dismissing the cause, plaintiff appeals. Reversed and remanded, with directions.

Taking possession of the leased premises by the landlord, merely for the purpose of protecting the property, upon the abandonment thereof by the tenant, does not constitute an acceptance of the surrender of the lease by the tenant.

Katherine B. Mabry and Thos. J. Mabry, both of Albuquerque, for appellant.

Heacock & Grigsby, of Albuquerque, for appellees.

PARKER, C. J.

Appellant and appellees entered into a written lease of certain premises in the city of Albuquerque at a stipulated monthly rental, payable monthly in advance. The complaint alleges that, after appellees had paid two monthly rental payments, and when there was due and unpaid one monthly rental for the succeeding month, the appellees removed from the premises and advised the appellant that they would refuse further to occupy the same, or pay the rent therefor, which was against appellant's protest and without his approval or request. The complaint then alleged that appellees then abandoned the premises, and further alleged:

“That plaintiff, in order to protect himself and his said property and premises, the subject of the said lease, was obliged to take possession of the said place and now has and holds possession thereof, all because of the acts of defendants in voiding, repudiating, and breaking their said contract as aforesaid.”

The action was to recover the rent for the entire term of the lease. Defendants filed a demurrer to the complaint, on the ground that it disclosed that the plaintiff had taken possession of the demised premises and therefore had “waived and relinquished and abandoned and canceled all right and interest he had under the said lease.” The trial court sustained the demurrer and, appellant electing to stand upon his complaint and refusing to plead further, dismissed the cause, from which judgment this appeal was taken.

That the complaint is faulty and somewhat ambiguous is clearly apparent. We see no reason for inserting the allegation as to taking possession of the premises at all, in the complaint, and, when the appellant had opportunity, as he did, to clarify his allegations, it does seem that he might well have improved his opportunity in that respect. We deem the pleading, however, not to be open to successful attack by demurrer. The general proposition is that when a tenant abandons the leased premises and declares that he will no longer be bound by the lease, or pay the stipulated rental, the landlord may re-enter and terminate the contract of lease, in...