Davis' Adm'r v. Smith

The distinction between a duty created by law, and one created by the party, is an estab*r lished principle of our law. When the law creates a duty, and the party is prevented! 62s from performing it, without any default in him, and he has no remedy over, the law will^ excuse him. But when the party, by his own contract, creates a charge or duty upor"jrhimself, he is bound to make it good, if he may, notwithstanding any accident, by in 65a evitable necessity; because he might have provided against it, by his Contract, I ^ 2. The lessees of a grist and saw mill and carding machine, are bound to pay the rent, notwithstanding the main posts of the building, supporting all the machinery, were decayed ^ in consequence of which the building fell and destroyed all the machinery. The delect 14}($1™ P0Ets was an infirmity to which all timbers are subject, and their liability to such —' a defect was equally in the knowledge of both parties.

ERROR to Lafayette Circuit Court. 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 propertjr has been destroyed without any fault on his part: (Rutherfords Inst. 127.) This principle made part of the civil law, was introduced into the Code Napoleon (article 1722) and the civil Code of Louisiana (art. 2267.) it is now the law of Scotland; (l Bells. Com. 452,) and produced the old Egyptian law, which provided that if the violence of the Kile should wash away part of the leased land, the rent should be proportionally abated; (Puffendorf, 5 Book Ch. 6 sec. 2.) This, too, is the principle ot the common law in relation to the hiring of personal property, (Story on Bailments, secs. 383 and 384, Harrington vs. Snyder, 3 Barb. sup. ct. Rep. 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 vs. Quitter, 2 Ambler’s Rep. 619. 2. Although the old common law authorities, admitting that “eviction of title” extinguishes the rent, declare that the destruction of the property itself leases 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 vs. Marrable, 41 E. C. L. Rep. 263; Shepherd vs. Pybus, 42 E. C. L. Rep. 452; Corvie vs. Goodwin, 38, E. C. L. Rep. 162; Ripley vs. Wrightman 4 McCord’s Rep.448. 1. The lease of tile 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, eithetjexpress or implied, in the contract that the tenants, &e , were sound and durable, or that they would endure or continue during the whole or any particular part of the term, to answer ihe 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: See Archibald on Landlord and Tenant, p. 31 and 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. 2d. Kelly’s Rep. 126, and following, 2 Strange 763; 3 Kent’s Com. 465-8; 3 John. 44. There is no reason why the'lessee should claim an exemption from the payment of rent in a case like the case at bar, which would not apply with equal force to the cases above referred to and I cannot conceive upon what ground the defendant in this case can rely in his defence. If the ground is to be taken and maintained, that because this court doubts the reason or ’propriety of an established rule of law, it may reject the rule and substitute another for it; then all principles are again thrown afloat on the ocean of uncertainty without any compass but the discretion of the Judge. The foundation of the law is not laid on such a fluctuating basis. It has been pronounced by the greatest jurists to be the perfection of reason, not of every man’s natural reason, but an artificial perfection of reason, gathered by long study, observation and experience; 17 Serg. & Raule. 321; Coke Lit. 97,