Robinson vs. Mc Donald.

body of Robert, living at the time of his death, or within a life or lives in being, and twenty-one years afterwards, the right of the three sons to the property, in our judgment, depended upon an indefinite failure of issue or heirs, and was therefore void, as being too remote, under the rule of the Common Law. We adopt the rule in Shelley's case, that the term heir, or heirs, in a gift or conveyance, (without explanation or restriction,) are words of limitation, and not words of purchase. That it is not, nor ought not to be, in the power of the testator to prescribe a different meaning to the word heirs from what the law prescribes, when they are to take in their character as heirs; or, as was said by Lord Thurlow, in Jones vs. Morgan, "that whoever takes in the character of heir must take in the quality of heir. Let us now examine the acts of our own Legislature upon this subject. In 1799 there was an act passed to carry into effect a provision of the Constitution which declared "estates shall not be entailed." Prince Dig. 231. In the year 1821 an act was passed declaring "that all gifts, grants, bequests, devises, and conveyances, of every kind whatsoever, whether of real or personal property, made in this State, and executed in such manner, or expressed in such terms, as that the same would have passed an estate tail in real property, by the Statute of Westminister second, (commonly called the statute de donis conditionalibus,) be held and construed to vest in the person or persons to whom the same may be made or executed, an absolute unconditional fee simple estate."

The second section of the same act further declares, "all gifts, grants, foffments, bequests, devises, and conveyances of every kind whatsoever, of real or personal property, hereafter made or executed within this State, shall be held and construed to vest in the person or persons to whom the same are made or executed, an absolute unconditional fee simple estate, unless it be otherwise expressed and a less estate mentioned and limited in such grant, gift, foffment, bequest, devise, or conveyance." Prince Dig. 247. So it will be perceived that this testamentary paper, having been executed in this State since the passage of the above recited act, must be controlled thereby, which unquestionably defeats the right of the three sons to the property, even if the Common Law rule had given it to them. The effect of the Act of 1821, as operating upon this bequest, is to vest the absolute title to the property in Robert, the first taker; and the Court below, in our judgment, ought so to have instructed the jury. Let the judgment be reversed and a new trial granted.

White and others vs. Molyneux.

No. 15.-EDWARD A. WHITE and others, plaintiffs in error vs. EDMUND MOLYNEUX, defendant in error.

[1.] A note given for rent of a store-house is for rent, omitting the words of store-house.

described in the plaintiff's writ as given Held not to be a fatal variance under our

statute.

[2] In case of express contracts to pay rent, the destruction of the premises by fire, or violence, or any casualty whatever, is not a good defence to an action to recover the rent, unless there is also an express stipulation to that effect. Nor will a Court of Equity relieve against such contracts under such circumstances.

Action for Rent. From Muscogee Superior Court. Tried before Judge Alexander. November Term, 1846.

For the points, see decision of the Supreme Court.

A. G. FOSTER & HINES HOLT, for the plaintiff in error, submitted the following points, with a brief of authorities relied upon.

First. No consideration is necessary to give validity to a specialty. Chit. on Con. 2; 4 Barn. & Ald. 652; 3 Bing. 111, 112.

Where a thing is lawful at the time of covenant made, and afterwards the thing agreed to be done is prohibited by act of Parliament, yet such covenant will bind; 3 Mod. 39. And if a man covenant to do a thing before a certain time, and it becomes impossible, from act of God, this shall not excuse him, inasmuch as he hath bound himself precisely to do it. 2 Danv. Abr. 84. As to covenants in this regard, see Shep. Touch. 160. In the case of a specialty no consideration is necessary, even in a Court of Equity. Plowd. 308; Fallows vs, Taylor, 7 T. R. 477; 4 Bar. & Ald. 652; 1 Fonb. Eq. 5 ed. 342, note; 3 T. R. 438. And the doctrine of estoppel applies only in the case of deeds and records. 2 Bla. Com. 295; Comyn. Dig. Estop. 1 Saund. 216, note 2; 3 T. R. 424.

Where an obligation is imposed by rule of law, and there is not an express covenant, then an act of irresistible violence will excuse the party. Bealle vs. Thompson, 3 Bos. & Pull. 420, 301; Warren vs. Powers, 5 Conn. R. 381. In all simple contracts the consideration may be inquired into. 7 T. R. 350, note a; Chit. on Con. 6, 7; 3 Penn. R. 414; 4 John. R. 235, 296; 4 Munf. 95, 273; 7 Cowen, 322; 3 Dessausure, 310, 341; 2 Day, 22. And, if there be a partial failure, it may be specially pleaded, Hotchkiss, 572.

White and others vs. Molyneux.

In equity, loss by fire discharges the rent; and, though landlord may maintain action at law, equity will restrain by injunction until house is rebuilt. Treat. of Equ. Lib. 1, ch. 5, sec. 8; Amb. 619; Steele vs. Wright, 1 T. R. 708; Gates vs. Green, 4 Paige's R. 355. And, under our statute, if party can establish his right without resorting to the conscience of the opposite party, he shall not be compelled to resort to equity, but may proceed to establish his right at Common Law. Hotchkiss, 675, secs. 2 and 3.

All the authorities that support the doctrine that the tenant is bound for rent notwithstanding premises are destroyed, proceed upon the ground of express covenants; and, if the party be injured, he has his remedy over. 3 Burrows, 1637. If the house be blown down by a storm during the term, the rent shall be apportioned. 4 McCord, 447; Ripley vs. Wightman, 6 Bacon, 50. Jury may apportion rent due, Gilbert on Distress, 189.

If hired slave die during the year his wages shall be apportioned, Bacot vs. Parnell, 2 Bailey's R. 424; George vs. Elliot, 2 Hen. & Munf. 5. Tenant is not liable for use and occupation if he has no beneficial occupation. Edwards vs. Etherington, Ryan & Moody, 268; Salsbury vs. Marshall, 4 Car. & Payne, 65; 7 D. & R. 117; 8 Bar.& Cres. 324. If premises are unwholesome from want of drainage &c. 1 Moody & Ryan, 112.

Second. A contract or written instrument should be stated according to its legal effect. Morris vs. Fort, 2 McCord, 398; 10 John. R. 90. The contract proved should accord with the contract alleged. Crawford et al. vs. Morrell, 8 John. R. 253; Smith vs. Barker, 3 Day, 312; Churchhill vs. Wilkins, 1 T. R. 447; Tate vs. Wellings, 3 T. R. 538; Leery vs. Goodman, 4 T. R. 687. To allege a consideration for the promise different from the true one not supported by the proof, will be cause for non-suit. Stone vs. Knowlton, 3 Wendall, 374; 2 Johnson's Cases, 55.

JOHN JONES and ALEXANDER MCDOUGALD, for the defendant in

error.

First. The lessee of a house is bound by his contract, though the house is destroyed by the act of God or the King's enemies. 3 Kent's Com. 465; Story's Equity Jurisp. ch. 116, secs. 101, 102; Mark vs. Cooper, 2 Lord Raymond, 1477; Belfour adm. vs. Weston, 1 T. R. 310; 3 Burr. 1637; Do. ex dem. Ellis & Medwin vs. Sandham, 1 T. R. 705; Walton vs. Waterhouse, 3 Saunders, 422,

White and others vs. Molyneux.

and note 2 to same case; Baker vs. Holtzapffel, 4 Taunt. 44; Holtzapfel vs. Baker, 18 Ves. Jr. 116; Fowler vs. Bott, 6 Mass. 63; Phillips vs. Stephens, 16 Mass. 238; Hallet vs. Wilie, 3 John. 44; 2 Kinne's Law Com. 534.

Second. In duties created by operation of law, equity will grant relief. But not in matters of positive contract and obligation will equity interfere. Story's Equity Jurisp. ch. 116, secs. 101, 102.

By the Court.-NISBET, J. delivering the opinion.

[1] The first question made upon this record is as to variance between the allegation in the writ, descriptive of the note sued on, and the note tendered in evidence. There was a demurrer to the evidence. The writ set forth a note given for rent, generally, and the note tendered in evidence, was given for rent of a store-house. It is claimed, that the Court erred in overruling the demurrer. As the Common Law stood at the time of our adoption of it, we are inclined to believe that this would be a fatal variance; in England, at this day, it certainly would not be; under our statute we cannot hold the variance fatal. The plaintiff's cause of action is so plainly and distinctly set forth, that the defendant is put upon his guard as to the nature and identity of his demand, and the record of recovery here, would be a good bar to another action. between the same parties upon the same cause of action.

[2.] This was an action for rent, to which the defendant pleaded the destruction of the house rented, by fire. Upon motion the Court ordered the plea to be stricken out, and error is assigned upon that decision. We consider this question as conclusively settled in England and the United States, if authority can settle any thing. It is well settled, that neither a court of law, nor of equity, will relieve against an express contract to pay rent upon the ground that the premises have been destroyed by fire, or the King's enemies, or any casualty whatever, unless there is an express stipulation to that effect. Inevitable accident will excuse a party from a penalty, but will not relieve him from his covenant to perform. 1 Dyer, 33 a; 3 Kent, 468.

And an eviction of the tenant upon a title paramount to the landlord's, will excuse the tenant from payment of rent. Idem Auct. Also, Crabb's Law of Real Property, t. p. 152; Gilb. Rents, 145.

By the law of Scotland, upon the hire of property, a loss or injury to that property, which is not occasioned by the fault or neg

White and others vs. Molyneux.

ligence of the hirer, falls upon the owner; and the lessee is entitled to an abatement of the rent in proportion to any partial destruction of the subject. 1 Bell's Com. 452. A similar doctrine prevails in Louisiana. Civil Code of Louisiana, art. 2667. And in France by the Code of Napoleon. Code Nap. art. 1722. Pufffendorff considers this a plain principle of natural law, founded in eternal justice. Puff. book 5, ch. 6, sec. 2. By the Civil Law the Prætor would exempt the tenant from paying rent, or modify the obligation according to equity, when the property was destroyed by fire, inundation or violence, or the crops failed by bad seasons. Dig. 19, 2, 15, 2; Code, 4, 65, S. In a case in England, Brown vs. Quitter, Lord Northman thought it very clear, that a man should not pay rent for what he cannot enjoy, if occasioned by an accident which he did not undertake to meet. Amb. R. 619. Indeed the Courts of Equity in England for a long time struggled against a contrary doctrine. See Harrison vs. North, 1 Ch. Cas. 83; Steel vs. Wright, 1 T. R. 708, note. The question whether a Court of Equity would grant relief against a landlord's claim for rent has been set at rest in England, in Hare vs. Grove, 3 Anst. R. 687, and Holtzapffel vs. Baker, 18 Ves. Jr. 115; and Leeds vs. Chatham, 1 Simon, 146; see also, 1 Harr. & Johns. 42.

The reason in equity is, that in case of the destruction of the property, the loss of the rent must fall somewhere, and there is no more equity that the landlord should bear it than the tenant, when the tenant has expressly agreed to pay it, and when the landlord must bear the loss of the property destroyed. Equity considers the calamity mutual. She will not interfere to relieve against the express contract of the tenant. So that, notwithstanding the opinion of Puffendorff, the authority of the Civil Law, and even some adjudications in England and in this country, we consider the rule established as we at first laid it down.

As early as the reign of Henry VIII this question was mooted at law, and in the case of Taverner it was left unsettled. 1 Dyer's R. 55, 56. In the reign of Charles I, the Court of Kings' Bench held, that where the rentor had been driven from the premises by public enemies, viz. Prince Rupert and his soldiers, he could not plead it in bar of the rent. Chancellor Kent, after reviewing the authorities, declares: "It is well settled that, upon an express contract to pay rent, the loss of the premises by fire, or inundation, or external violence, will not exempt the party from his obligation to pay rent." 3 John. R. 44; 4 Taunt. R. 45; Pollard vs. Shaffer, 1 Dall.