Taylor v. City of Carondelet

• Decision Date: 31 October 1855
• Parties: TAYLOR, Appellant, v. CITY OF CARONDELET, Respondent.
• Court: Missouri Supreme Court

22 Mo. 105

TAYLOR, Appellant,

v.CITY OF CARONDELET, Respondent.

Supreme Court of Missouri.

October Term, 1855.

1. The trustees of the town of Carondelet were empowered, by the act of February 6, 1839, (Sess. Acts, p. 210,) to grant leases of the land belonging to the corporation, and were clothed with “all the power and authority necessary to carry into effect the objects of the act, and to do all acts that might be proper for that purpose;” held, that under this act the trustees of the town might, in accordance with a town ordinance to that effect, make leases containing a clause of forfeiture for non-payment of rent reserved, and that such forfeiture, when declared in proper form, could not be relieved against, although no demand of rent had been previously made. The corporation, in its political capacity, having required the insertion in the lease of the clause of forfeiture, it is as though it had been done by the legislature. (LEONARD, J., dissenting.)

Appeal from St. Louis Land Court.

The incorporated town of Carondelet was proprietor of a large tract of land, consisting of several thousand acres, granted to the inhabitants as a common in Spanish times, and confirmed to them by the United States. The general assembly of this state by act of February 6, 1839, (Sess. Acts, p. 210,) empowered the trustees of the town to grant leases of this land, renewable forever, reserving rents. The board of trustees was by this act clothed with “all the power and authority necessary to carry into effect the objects of the act, and to do all acts that might be proper for that purpose.” On the 12th day of January, 1845, the trustees of Carondelet passed town ordinance No. 78, directing a sale of lots in survey No. 3, and that the purchaser should pay two per cent. on the amount bid, as an annual rent for ninety-nine years, and four per cent. forever afterwards. The fifth and sixth sections of this ordinance are as follows: “Sec. 5. The leases shall contain a provision to the following effect, viz: That, should the rent reserved as aforesaid, or any part thereof, on any lease, remain unpaid for six months after the same shall become due, the board of trustees may, by resolution, declare such lease terminated and void, and the same shall expire and be determined from that day.” “Sec. 6. The leases provided for in this ordinance are to contain all the conditions and provisions which the board of trustees may think necessary, to secure the rent as aforesaid.” Under this ordinance, the trustees leased to one Burnet lot 72, in survey 3, containing about ten acres, at the yearly rent of four dollars and ninety-nine cents, payable on the 4th of April. This lease expressly referred to the town ordinances, and contained the following clause: “And it is further covenanted and agreed by and between the parties aforesaid, that if at any time the rent aforesaid for six whole months shall be in arrear and unpaid, the said parties of the first part, or their successors in office, may terminate this lease by order or resolution, to be entered on record among the acts and proceedings of the said board, and may enter and take possession of the demised premises, free from any claim of the delinquent lessee, his executors, administrators or assigns.” On the 15th of March, 1849, Bennet acquired the leasehold interest by mesne assignments under Burnet. On the 8th May, 1852, Bennet conveyed an undivided moiety to Camden. Neither Burnet nor any claiming under him ever made any improvements on the lot, nor did they even take actual possession; it lay wholly unenclosed and unoccupied. In 1851, the town of Carondelet was erected into a city, with enlarged limits, embracing the leased premises. The powers of the old town trustees were vested in the new city council. The rent under the lease for the years 1850 and '51, was wholly unpaid. On the 10th July, 1852, the city council terminated the lease by resolution, in proper form. In the fall of 1852, Bennet and Camden applied to the city council to repeal the resolution, making, at the same time, a tender of the said rent, taxes with interest, and costs. The application was denied by the council. In this state of things, on the 17th day of January, 1853, and on the 2d March, 1853, Taylor, the plaintiff, became the purchaser of Bennet's and Camden's interest. He then commenced an action by petition in St. Louis Land Court, praying that the said resolution of forfeiture may be rescinded and annulled on the terms of his paying the back rents with interest and costs. The court below, upon the foregoing facts appearing on the trial, refused relief and dismissed the petition. The plaintiff has brought the case here by appeal.

Reber and Carroll, for appellant.

1. The indenture executed to Burnet is a lease, and established the relation of landlord and tenant, with all the incidental rights and duties; it was not a sale. See Sess. Acts, 1839, p. 210; Ordinance 78 (of Carondelet). 2. The plaintiff is entitled to the relief prayed, upon the well settled doctrine that courts of equity will relieve a tenant who has forfeited his estate by the non-payment of rent at the appointed time. (2 Sto. Eq. p. 545; 2 Platt on Leases, 475, 477; Comyn's Land. & Ten., 4 vol. Law Lib. p. 322; 2 White's Lead. Cas. in Equity, 70 Law Lib., 458; Platt on Con. 253; Wadman v. Colcraft, 10 Ves. 67; Sanders v. Pope, 12 Ves. 289; Bowser v. Colley, 1 Hare, 126.) This relief is not granted on the ground of mistake, fraud or accident, but upon the broad equity that the tenant shall not suffer when he is willing and able to make the landlord whole. (2 Sto. Eq. p. 554; also 18 Ves. 58.) 3. The plaintiff then is entitled to relief unless his situation is different from that of ordinary tenants. The inhabitants of Carondelet were the absolute owners of their common. (Act of Cong. January 27, 1831.) The act of February 6, 1839, merely gave the power to lease, and did not prescribe the form of the leases. When the leases were made, their incidents and the rights of lessor and lessee were determinable by the nature of the contract and the general law of the land. The ordinances of Carondelet can not, in any just sense, be considered as statutes, having the power to impose forfeiture. They are no more than the powers of attorney of the inhabitants authorizing certain agents to lease lands belonging to them. The corporation, in leasing its land, is acting in a private proprietary character, and not in a public municipal capacity. See Major, &c., v. Bailey, 2 Denio, 433; Grant on Corp. 129. 4. The corporation had no power to declare forfeitures without a legislative grant, given in express terms, or by necessary implication. (Cotter v. Doty, 5 Ohio, 393.) The power reserved in the fifth section of the ordinance, and inserted in the lease, is substantially nothing more than the common clause or proviso inserted in leases from time immemorial. 5. The effect of the proviso of forfeiture for non-payment of rent is the same, whether the lease is declared void or the landlord has simply the right of re-entry. (1 Hare, 109; 2 Platt on Leases, 327; 4 Cruise, 73, notes.) 6. The primary object of the clause of forfeiture was to enforce the payment of rent, not to terminate the contract. 7. A demand of rent was necessary. (12 Ohio, 212; 17 Pet. 267; 1 How. 216-17.) Although the king may not be bound to make demand of rent, corporations cannot claim that privilege. (Knight's case, 5 Coke, 57.)

R. M. Field, for respondent. No demand of the rent was necessary before terminating the lease by resolution of the council. The old rule of the common law undoubtedly was, that to enable the lessor to take advantage of a clause of reentry for the non-payment of rent, he must, on the day when the rent becomes payable, and at the uttermost convenient time before sunset of that day, make a formal demand of the rent at the most public place on the demised premises. (Co. Litt. 201. 1 Saund. 287, note.) It is conceived that in no case would this rule be adopted by the courts here, where the demised premises were actually vacant and unoccupied. But, however it might be in respect to individuals, the rule, it is believed, never had any application to leases by the officers of public municipal corporations, who are exercising the administrative powers of the government. Coke says that when the king makes a lease rendering rent, the place of payment is not the land, but the exchequer. (Co. Litt. ubi supra.) All cities and incorporated towns have public offices, at which the dues of the corporation are payable. 2. The plaintiff is entitled to no relief in equity. The general rule that equity will interfere and relieve against a forfeiture incurred by the non-payment of rent, on the ground of accident or mistake, is admitted. See 2 Platt on Leases; 2 Sto. Eq. 506. Some of the cases go so far as to say that equity will relieve where the non-payment is willful; but it is believed that the general doctrine is that there should be some circumstance of accident, mistake or peculiar hardship to justify the action of the court. (Livingston v. Tompkins, 4 Johns. Ch. 447; Baxter v. Lansing, 7 Paige, 350; Newman v. Rogers, 4 Bro. C. C. 393; Hill v. Barclay, 18 Ves. 60.) There is no circumstance of accident or hardship in this case. Besides, it is a settled rule, that no forfeiture incurred under the provisions of a public law can be relieved against in equity. (Peachy v. Somerset, 1 Strange, 447; Gorman v. Low, 2 Edward Ch. R. 324.) If the legislature had itself prescribed the terms of the leases, and when a forfeiture should be incurred, it would hardly have been contended by the plaintiff that the court could relieve in the face of an express statute. Substantially, however, that is the case now before the court. The legislature gave to the trustees of the town power to make leases and to expend the rents for municipal purposes; and “ all the authority necessary to carry into effect the...