Richburg v. Bartley
| Decision Date | 31 August 1853 |
| Citation | 44 N.C. 418 |
| Court | North Carolina Supreme Court |
| Parties | DOE ex dem. ELIZABETH C. RICHBURG v. JOHN H. BARTLEY. |
Where forfeiture of a lease is incurred by nonpayment of rent, if the lessor receives from the lessee rent subsequently accruing, the forfeiture is thereby waived.
EJECTMENT, tried before BAILY, Judge, at Madison, at Fall Term, 1852. The plaintiff offered in evidence a lease for the premises in question, executed by her to the defendant, demising the same for the term of “five years, to wit, commencing with 1st day of January, 1850, and ending on 1st day of January, 1855,” and in which it was covenanted on the part of the defendant, to pay the plaintiff “one hundred dollars per year, to be paid at the end of each year,” and after stipulating to make repairs and certain improvements on the premises, follows this clause: “It is further understood, that if the said Bartley shall fail to comply with the terms herein specified, or shall fail to make the annual payment when due, he shall be liable to an immediate removal.”
The declaration was issued in October, 1851, and served on the defendant November 4th following.
It was admitted that the defendant was in possession of the said premises at the time the declaration was served; and further admitted that he did not pay the rent at the end of the year 1850, as he had stipulated to do; but it was in evidence that he paid to plaintiff the rent for 1850 in full, and for 1851, on the 28th October, 1851--having during the latter year, made partial payment thereof. The plaintiff also offered evidence tending to show that the defendant had not performed his covenants in respect to repairs and improvements, and counter evidence was offered by the defendant on this point, (but it is deemed unnecessary to state the facts here, as the plaintiff's counsel has not in this Court insisted on the same as creating a forfeiture of the defendant's estate.) As to the first point, the defendant's counsel in the Court below insisted that the plaintiff had not the legal title at the date of the demise in the declaration, that no entry was made by her, and no notice given to the defendant, and if the defendant was liable at all, it was only for a breach of covenant; and further, that the payment of the rent in 1851, for the years 1850 and 1851, was a waiver of the trespass, and the plaintiff could not therefore maintain her action. By consent of parties, this question was reserved by his Honor,...
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