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In this case the floors were consumed, and the rooms so damaged as to be untenantable until the landlord completed their repair,-after about seven months interval from the time of the fire. It was deemed unreasonable to hold this act of the landlord as announting to an eviction ; and nothing else being done by him to take away the continuance of the tenants occupation or enjoyment, the tenant was regarded as having the power to occupy or enjoy so far as depended on the landlord, and was made to pay the rent for the time that he had nothing save the space enclosed by the four walls, which space it was not possible for him at such time to enjoy in the sense in which the word is used in common parlance.
When the lessee binds himself for the payment of rent by a positive covenant, and without any restriction, an exception in his favour that he shall not be bound to repair in case of fire is merely negative. It saves him from one of the duties to which he would otherwise have been liable in that event under the general covenant to repair; but does not, in the same event, excuse him from the duty of paying rent. Hare v. Groves &c. 3 Anstr. 696.
“ The justice of the case is so clear that a man should not pay rent for what he cannot enjoy, and that occasioned by an accident which he did not undertake to stand to," that Lord Northington was “much surprised it should be looked upon as so clear a thing that there should be no defence to such an action at law; and that such a case as this should not be considered as much an eviction as if it had been an eviction of title ; for," said he, “the destruction of the house is the destruction of the thing.” Brown v. Quilter, Amb. 621.
McDonald, C. B. questioned whether there is any real resemblance in such a case to that of an eviction of the tenant by title paramount, to which Lord Northington had assimilated it. " The tenant,” says the chief baron, “can only be evicted where the title of the landlord was originally bad, where he never had in truth any thing to demise, and the pretending to do so was a fraud upon the lessee. In the present case there was a full capacity to demise the thing leased on any terms which the parties might agree upon. The possibility of destruction by fire was in their contemplation in making the lease; and it would have been very easy to provide against the payment of rent in such an event, or for apportioning the rent on a partial loss, if such had been the intention of the parties : on the contrary the lessee has expressly stipulated to pay the rent during the term at all events; and it is very difficult to say that that was not the intention.” Hare v. Groves & c. 3 Anstr. 693, 4; 698.
However consonant this view may be to the established law, it does not shew that the law should be allowed to remain so.
The revisors of the Code of Virginia proposed, as part of chapter 117 of the Code, the following section :
$ 14. No covenant or promise by a lessee to pay the rent, or that he will leave the premises in good repair, shall have the effect if the buildings thereon are destroyed by fire or otherwise, without fault or negligence on his part, of binding him to make such payment or erect such buildings again, unless there be other words shewing it to be the intent of the parties that he should be so bound. But in case of such destruction, there shall be a reasonable reduction of the rent, for such time as may elapse until there be again upon the premises, buildings of as much value to the tenant for his purposes, as what may have been so destroyed.
To this section the revisors appended the following note:
In Ross v. Overton, 3 Call 309, the lessee of a mill having covenanted, in addition to the rents reserved, to make certain improvements, and deliver the mill with such improvements, at the end of his term, in proper tenantable repair, and the mill, during the lease, having been destroyed by the ice, three arbitrators, to whom the matter was referred, awarded that the lessee should pay the rents, notwithstanding the des. truction of the mill, and should perform the other covenants contained in the lease; and the court of appeals expressed an opinion that the arbitrators did not mistake the law. In the half a century which has elapsed since this award, no attempt has been made to change or explain the law, though in that time many cases have occurred elsewhere, shewing most strongly the necessity for legislation on the subject. Pol. lard v. Shauffer, 1 Dall. 210; Fowler, &c. v. Bott, dc., 6 Mass. Rep. 63; Wagner v. White, 4 Har. & Johns. 564. In Leeds v. Chutham, 1 Simons 146; 2 Cond. Eng. Ch. Rep. 74, the vice chancellor, in reference to the particular provisions of the lease in that case, lays down the rule at law in these terms: “There being in the lease no exception as to the case of accident by fire, the plaintiff at law continues bound to pay his rent. He continues bound also, by his covenant, to keep in repair the inside work of the factory, the steam engine and the other apparatus, and all the out buildings and fixtures which were on the premises. On the other hand, the defendant, for want of the exception as to accident by fire, continues bound by his covenant to repair the outer part of the buildings, and also by his covenant to replace the steam boiler and other apparatus during the last fourteen years of the term; and when from long use they are no longer workable under these covenants, the defendant is bound to rebuild the factory, and to cover in the same with proper roofing and slating or tiling; and the plaintiff is bound to rebuild the out buildings, and to do all necessary works to complete the inside of the factory, when it is built and covered in by the defendant. And clearly at law, the plaintiff
, having covenanted to pay his rent during the whole continuance of the lease, is not entitled to any suspension of the rent during the time that will be occupied in
the rebuilding and restoration of the premises.” After thus stating the rule of law he adds, “It appears to me that in this respect equity must follow the law. The plaintiff might have provided in the lease for a suspension of the rent in case of accident by fire; but not having done So, a court of equity cannot supply that provision which he has omitted to make for himself; and it must be intended that the purpose of the parties was according to the legal effect of the contract.”. Such are the rules established both at law and in equity, and still continuing, notwithstanding the judges are constantly expressing their disapprobation of them. In Gates v. Green, 4 Paige 357, Chancellor Walworth says, “It appears to be a principle of natural law, that a tenant who rents a house or other tenement for a short period, and with a view to no other benefit except that which may be derived from its actual use, should not be compelled to pay rent any longer than the tenement is capable of being used." Yet, while regarding this as natural equity, be did not feel at liberty to disregard the rule which he considered settled, that "a lessee of premises which are burned, has no relief against an express covenant to pay the rent either at law or in equity, unless he has protected himself by a stipulation in the lease, or the landlord has covenanted to rebuild.” Certainly, if a lessee chooses to say in express terms, that be covenants to pay the rent during the continuance of the lease, notwithstanding all the buildings be in the mean time destroyed by fire or the public enemy, he should not be entitled to a suspension of the rent. But the fault of the rule which has been established, appears to be in considering such as the meaning of a covenant, when it is manifest that it was not the intention of the parties. The remark of M'Kean, C. J., in Pollard v. Shaaffer, 1 Dall. 215, is not less applicable to a covenant to pay rent, than to a covenant to rebuild or repair. “Suppose,” he says, “when the lease was executed, that the lessee had been asked, “Is it your meaning, that in case the buildings shall be destroyed by an act of God or public enemies, you are to rebuild or repair them ?" His answer would have been, unquestionably, “No, I never entertained such an idea.” Should the like question have been put to the lessor, his answer would certainly have been, "No, I do not expect anything so unreasonable.” The section to which this note is appended, lays down a rule, which it is thought will better accord with that natural equity of which Chancellor Walworth speaks, than the rule now existing.
The section thus proposed by the revisors was not adopted ; it was altered by the committee on revision, and as so altered was passed in the terms mentioned, ante, p. 48. See 19 on that page.
In Virginia then, as in England, it is still a general principle that where a tenant covenants generally to pay the rent he is not absolved, although the premises be destroyed by fire. Thompson v. Pendell, 12 Leigh 601. This case was taken out of the operation of the general rule by the terms of the contract which were somewhat peculiar.
It is so likewise in New York. In Allen v. Culver, 3 De. nio 294, but for the provision in the lease, looking to the case of fire, the tenant would undoubtedly have been liable to pay the whole rent without any abatement in consequence of the destruction of a portion of the buildings. Hallett v. Wylie, 3 Johns. 44; Gates v. Green, 4 Paige 355 ; 3 Kent's Com. 465. As it was, under the terms of the lease, the lessee in Allen v. Culver was liable only to pay a proportional part of the rent for the premises not destroyed by the fire.
13. Of covenants in the sale of chattels.
It being a general rule that in the bargain and sale of an existing chattel, by which the property passes, the law does not (in the absence of fraud) imply any warranty of the good quality or condition of the chattel so sold, the simple bargain and sale of a ship is not deemed to imply any contract that it is then sea-worthy or in a serviceable condition; and an express covenant that the defendant had full power to bargain and sell in the manner before mentioned does not create any further obligation in this respect. But the bargain and sale of a chattel, as being of a particular description, does imply a contract that the article sold is of that description. Budge v. Wain, 1 Stark. N. P. C. 504; 2 Eng. Com. Law Rep. 486; Shepherd v. Kain, 5 Barn. & Ald. 2,0; 7 Eng. Com. Law Rep. 82. Therefore the sale of a ship implies a contract that
. the subject of the transfer did exist in the character of a ship; and an express covenant that the defendant had power to make the bargain and sale of the subject before mentioned, will operate as an express covenant to the same effect of such a covenant, therefore, there is a breach if the subject of the transfer had been, at the time of the covenant, physically des ed, or had ceased to answer the designation of a ship; but there is no breach if it still bore that character, although the ship was damaged, unseaworthy or incapable of being beneficially employed. Bair v. Gibson, 3 M. & W. 399. In
& this case the subject of the transfer had the form and structure of a ship, although on shore, with the possibility, though not the probability, of being got off. She was still a ship, though at the time incapable of being, from the want of local conveniences and facilities, beneficially employed as such. The covenant, therefore, of the defendant, that he had power to transfer her as a ship at the time of executing the deed, was held not to be broken.
A covenant to do all reasonable acts for further and better assigning and transferring chattels conveyed by deed, means merely that neither the covenantor nor those claiming under him will do anything to interrupt the quiet enjoyment of the chattels by the parties contemplated by the deed. Parke, B. in Word v. Audland, 16 M. & W. 875. This case was considered to fall directly within what Lord Hale lays down in Dering v. Farington, 1 Freeman 368, 1 Mod. 113, 3 Keble 104, 6 Vin. Abr. 381.
In South Carolina an express warranty of title to a slave does not exclude an implied warranty of soundness. But when the contract is evidenced by a bill of sale under seal, the terms of which import clearly a warranty of title, the covenant is not extended by intendment to give it the effect of a warranty of soundness. Roseman v. Hughey, Rice 437.
14. Of a covenant by a man to devise or bequeath his estate.
Whether a man covenant to bequeath all his personal estate, or all his real and all his personal estate, among particular persons, he will not be guilty of a breach of the covenant in selling or conveying a part of the estate ; such a covenant applying only to the estate that he shall have at his death. Lewis v. Madocks, 8 Ves. 150; 17 Id. 48; Needham v. Kirkham, 3 Barn. & Ald. 531; 5 Eng. Com. Law Rep. 364.
15. Of covenants to pay; distinction between a covenant to
pay money and a covenant to pay property.
A general undertaking to pay money, without specifying the time of payment, obliges the party to pay immediately; but an undertaking to do any collateral act, as to convey lands, entitles the party to perform it, at any time during his life, unless hastened by the request of the other party. Green, J. in Bailey v. Clay &c. 4 Rand. 350.
A stipulation to pay money on a particular day unless some event shall happen which, in its nature, may happen either before or after that day, necessarily implies that the money is to be paid if the event does not happen before that day. Thus where the obligor undertook that if W. C. who was prosecuted for murder was not found guilty of murder in the first degree, he would pay the obligee $ 200 on or before the 12th day of September 1819;—the instrument was construed to mean that if W. C. was uot found guilty of murder in the first degree and sentenced therefor before that day, the obligee was entitled to the $ 200. Cobbs v. Fountaine, 3 Rand. 486.
A bond or note payable in property at a stipulated price or the market value, becomes payable in money by a failure to