Knight v. Orchard

1. Covenant; IN A LEASE TO PAY TAXES: RENT. The covenant in the lease, in the case at bar, to pay the taxes, must from the evident intention of the parties, be recognized as an agreement to pay them as a part of the rent. While they are not expressly so named, yet the parties to the contract clearly so intended, and this is the necessary implication. 2. Forfeiture of Lease: CONTRACT, CONSTRUCTION OP. Forfeitures are not favored by the law, and when it is sought to enforce one, the court will scrutinize the contract very closely for the purpose of ascertaining whether or not the party seeking to enforce the forfeiture has in every particular complied with the terms of the contract in both its letter and spirit, and if the court discovers that there is a material benefit secured by the contract to the other party, that he has not lost by the forfeiture and that has not been restored or tendered to him, the court will refuse, to enforce the forfeiture. 3. -: -: -. In the case at bar, plaintiff promised to compensate the lessee for such permanent improvements as he should erect on the premises and she can not avoid the obligation by declaring a forfeiture of the lease for non-payment of rent. Plaintiff made no effort to pay for the improvements, and to permit an ouster in such circumstances would be highly inequitable.

Appeal from Butler Circuit Court. — Hon. J. L. Fort, Judge. STATEMENT OE THE CASE. We adopt the statement of the case made by appellant as it is a full and fair history of the proceedings both before the justice and the circuit court.- It is as follows: “This action was commenced originally before a justice of the peace of Butler county, for the purpose of recovering possession of the premises described in the complaint. A trial was there had, resulting in a judgment for the plaintiff for the recovery of the possession of the premises. Erom this judgment defendants prosecuted an appeal to the circuit court where a trial was had de novo. “The facts established in this record, and which are undisputed, are about as follows: “That in 1898, and prior thereto, and now, the plaintiff was and is the owner of the lot 'or parcel of ground described in the complaint. That on the ninth day of March, 1898, she executed to A. Saracini the lease or contract described in the complaint and read in evidence on the trial. By the terms of that lease, the said A. Saracini acquired the right to the possession, use and occupation of the said premises for a period of twenty years from that date, on condition that he complied with all the terms and conditions thereof. One of the conditions and agreements contained in the said lease is as follows, to-wit: “That The party of the second part, in consideration of the leasing of the premises aforesaid, agrees to pay as rent for the said premises the sum of ten dollars per month, payable monthly in advance, on the ninth day of each and every month during the term of this lease, and to pay all state, school and municipal taxes, whether general or special, and including special assessments which may be levied and assessed against the leased premises during the term of said lease.Whenever and as often as any installment of rent, or other sum declared to be payable or deemed to be taken as rent, shall be due and shall remain unpaid for a period of ten days after the same shall become due and payable, the said party of the first part may at her election,... declare this lease at an end, and recover possession as if said premises were held by forcible de-tainer.’ “That Saracini took possession under said lease, and substantially complied with the terms of said lease until the time of his death, which occurred some time in 1900. After his death his wife qualified as executrix under his will and took charge of the estate, and paid the monthly installments of rent up to and including the month of March, 1901. “The state, county and school taxes assessed against the said premises, for the year 1900, amounting to the sum of $23, became due and payable on the first day of August, 1900, and became delinquent on the first day of January, 1901. These taxes Mrs. Saracini failed to pay. On or about the first day of January, 1900, plaintiff’s agent, Mr. Renfro, went to Mrs. Saracini and asked her whether she had paid the taxes for 1900, and was told by her that all taxes had been paid. When asked to show her tax receipt, she made pretense of making a search therefor, but that she was unable to find the same, but again assured Mr. Renfro that she had paid the taxes. Plaintiff’s agent relied upon her statement that the taxes had been paid, and made -no further investigation until about the ninth of April, 1901, when he chanced to meet Mrs. Saracini on the street and asked her whether she had found her tax receipt. She replied she had not, but again assured him that all taxes had been paid; but something in her actions aroused Mr. Ren-fro’s suspicion that possibly the taxes had not been paid, when he went to the collector’s office and found that the taxes had not been paid. He then, under- instructions from plaintiff, paid tbe taxes, went to Mrs. Saraeini’s residence, showed ber tbe tax receipt, told ber that tbe taxes bad not been paid by ber, and that be bad paid tbe taxes, and that, under instructions from tbe plaintiff, be as ber agent bad elected to declare tbe lease at an end; that she bad forfeited the lease by failing to pay tbe taxes for tbe year 1900. That he at tbe same time notified defendant Orchard, who be understood was negotiating for a purchase of leasehold interest, that be bad declared tbe lease at an end, for failure to pay tbe taxes. He alsq notified defendants Henderson of that fact, and demanded that they pay tbe rent to him as tbe agent of plaintiff. “Prior to this time Mrs. Saracini bad sublet tbe premises to defendant T. J. Henderson, and be and bis son Charles were occupying tbe building. Subsequent to tbe conversation referred to, Orchard took an assignment of tbe lease from Mrs.. S., and defendants Plenderson bad attorned to him and agreed to pay rent to him as hi3 tenants. “Neither plaintiff nor ber agent bad any knowledge of tbe fact that tbe taxes bad not been paid for 1900 until tbe tenth day of April, 1901, but on tbe contrary relied upon-tbe statement of Mrs. S. to tbe effect that tbe taxes bad been paid. They immediately elected to declare the lease forfeited for non-payment of taxes, and refused to receive any more payments as rent on said premises. No payments were made or received thereafter. “Upon this state of tbe evidence, the court sustained a demurrer to tbe testimony and rendered judgment against the plaintiff for costs, and plaintiff brings tbe case to this court by appeal.” (1) Rent is a certain (determinate) profit either in money, provisions, chattels or labor, issuing out of lands and tenements in retribution or return for their use. 2 McAdaia on Landlord and Tenant, p. 902; Merritt v. Fisher, 19 Iowa 354; 2 Bouvier’s Law Diet., p. 535. (2) Taxes are rents, only, in the sense that the obligation to make repairs are so and not otherwise, and then only such taxes as are reasonably certain, or are susceptible of computation, or proof. G'ertum est quod, cerium neddi potest. 1 Bouvier, 214; 2 McAdam on Land and Tenants, p. 902. (3) The language of the lease is “to pay the party of the first part, or her order, as rent for the said premises, the sum of ten dollars per month, payable monthly in advance, on the ninth day of each and every month during the term of this lease.” This is a provision for the payment of a certain, a determinate rent, pure and simple, and for the non-payment of which a forfeiture might be declared. McAdam on Land and Tenants. (4) The further language of the lease, “and also to pay all state, school and municipal taxes (not county taxes), whether general or special, including special assessments that may be assessed against the premises herein 'leased during the term of said lease,” is an entirely distinct obligation, and is rent only in the sense that the tenant must pay the taxes named, and if he does not, the landlord may do so and recover the amount paid of the tenant. McManus v. Shoe & Clothing Co., 60 Mo. App. 218; Elliott v. Grant, 64 Mo. App. 248.