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In covenant as between lessor or lessee, where the action is personal and upon a mere privity of contract, and on that account transitory, as any other personal action is, the rent is not apportionable. Bro. Abr. Contract, pl. 16; Moor 116; Finch's Law Lib. 2, c. 18; Stevenson v. Lambard, 2 East 579; Holgate &c. v. Kay, 1 Car. & Kirw. 341; 47 Eng. Com. Law Rep. 341.

A lease made by a mortgagor not binding the mortgagee, he has in Massachusetts under the statute of 1785, c. 22, § 2; R. S. c. 107, § 1, a right under his paramount title to enter as against the lessee. 15 Mass. 270; Reed v. Davis &c. 4 Pick. 216. The lessee being thus evicted, such eviction is a good defence to an action against him by the lessor for rent which had not become due before the mortgagee entered and ousted him. Smith v. Shepard, 15 Pick. 150; Stone v. Patterson, 19 Id. 476; Welch v. Adams, 1 Met. 494. Under the rule stated in 1 Rob. Pract. 441, the lessee having the whole day to pay a quarter's rent, when the mortgagee's entry was during that day, the lessor failed to recover the quarter's rent. 15 Pick. 150. This was a case in which the quarter's rent was due by covenant in advance. The enjoyment of the land. being the consideration for the payment of rent, it was considered that when the prospective enjoyment of the estate was taken away, the obligation to make the prospective payment ceased.

Although rent is not apportionable in an action of covenant as between lessor and lessee, it is apportionable in an action of debt; and it is apportionable in an action of covenant against an assignee upon a covenant running with the land. Being chargeable on the privity of estate, and in respect of the land, his rent is apportionable in covenant as it would be in debt. Stevenson v. Lambard, 2 East 575.

11. How covenant to repair must be performed, when the house is destroyed by fire.

When a duty is cast upon a person by the law-not by his own voluntary contract-he may be excused from performing that duty by its becoming impossible by the act of God. Queen v. Leicestershire, 15 Adol. & El. N. S. 88; 69 Eng. Com. Law Rep. 88. And a man may be excused from a duty imposed upon him by the law, if he is disabled from performing it without any fault of his own. Yet when by his own contract he creates a duty or charge upon himself, he is bound to make it good notwithstanding any accident by inevitable necessity; because he might have provided against it by his

contract. 6 T. R. 750; Walton v. Waterhouse, 2 Saund. 422 a, note; 16 Mass. 240.

A lessee covenants that he will keep in repair, support and maintain all the fences and buildings, saving and excepting natural decay; and that at the determination of the lease he will leave and yield up the premises in as good condition as the same were in at the date of the lease, reasonable use and wearing thereof excepted. 7 C. & P. 129; 32 Eng. Com. Law Rep. 464. The house and fences are by accident, during the term, consumed by fire; to the surprise of the lessee, he is called on to rebuild, and failing to do so, an action is maintained against him for breach of his covenant; the court saying he might have guarded against it by introducing such an exception as is generally adopted in mercantile contracts, "fire or other casualty excepted." Phillips v. Stevens, 16 Mass. 238.

In New York as well as Massachusetts, the courts have recognized the rule established by the cases of the Earl of Chesterfield v. Duke of Bolton, Com. 627; Bullock v. Dommitt, 6 T. R. 650; 2 Chitty's Rep. 608; 18 Eng. Com. Law Rep. 431; Brecknock Navigation Co. v. Pritchard, 6 T. R. 750; Digby v. Atkinson, 4 Camp. 275; holding that on a general covenant by the lessee to repair he is bound to rebuild in case of destruction of buildings by an accidental fire, or of a bridge by an extraordinary flood. And when there is such a covenant by the lessor, it receives a like construction. The supreme court of New York considered there was no doubt but that by a covenant to repair like that in Allen v. Culver, 3 Denio 294, the lessors were bound to rebuild in case of total destruction by fire; and that the lessee might have his action. to recover the damages sustained by reason of the non-performance of this covenant. Nor is this rule of construction confined to cases of landlord and tenant. Brecknock Navigation Co. v. Pritchard, 6 T. R. 750; Beach v. Crain, 2 Comstock 94. A right of way or road is released through the grantor's lands; he agreeing to erect a good and substantial gate at the terminus of such road; and the grantees covenanting that all the repairs necessary to be made to said gate should be made by them. The gate is erected by the grantor and removed by some person unknown; it is held the grantees are bound to replace it. S. C.

In Virginia the courts have been averse to extending the doctrine of the tenant's liability in any degree beyond the adjudged cases. 8 Leigh 532. An agreement in a lease of a lot that a tenant will at the expiration of the term "return the said property with all its appurtenances," has in Virginia been

construed as looking to the return in opposition to holding over-not to the hazards of fire or other casualty. Mills and a carding machine being consumed (accidentally or by some unknown incendiary) by fire, it was held under such an agreement that the lessee was not bound to rebuild the premises and return them as he received them. Maggort v. Hansbarger, 8 Leigh 532.

The harshness of the rule established by the English cases is also lessened by § 19, of ch. 117, of the Code, cited ante, p. 48.

12. Whether lessee must pay rent although the house is destroyed by fire.

In the United States, a lessee for years who has covenanted to pay rent during the term, has been sometimes surprised when he was held to pay it after the buildings, which alone were valuable, were destroyed by fire. Fowler &c. v. Bott &c. 6 Mass. 63; 16 Id. 240; or by ice, Ross v. Overton, 3 Call 309; 2 H. & M. 408. An American court will say, it is a hard case upon the lessee; and if the court could, consistently with settled principles, relieve him, it would most willingly do it; but it cannot be done without overturning a series of decisions to which the court is bound to conform. It sits "jus dare," not "jus facere." Hallett v. Wylie, 3 Johns. 47.

The English decisions shew that on an express covenant to pay rent during the term, an action may be maintained for the whole rent stipulated to be paid, and for the whole time, notwithstanding there may be a fire which burns down houses on the leased premises and deprives the lessee of the enjoyment thereof for part of the term. Paradine v. Jane, Alleyn 27; Monk v. Cooper, 2 Str. 763; 2 Ld. Raym. 1477; Belfour v. Weston, 1 T. R. 310. The same rule has been acted on in a case wherein the agreement was not by deed. Baker v. Holtpzafell, 4 Taunt. 45. And it matters not whether there is an agreement in writing for a term of years, or only a tenancy from year to year. Until this last tenancy is determined by a notice to quit, it is, as to its legal character and consequences, deemed the same as a term of years; the relation of landlord and tenant continues, notwithstanding the consumption of the premises by fire; and the tenants holding under such tenancy have been held liable to the payment of rent, not only to the end of the quarter, which was current at the time of the fire, but afterwards until the tenancy was put an end to. Izore v. Gorton &c. 5 Bingh. N. C. 501; 35 Eng. Com. Law Rep. 198.

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 amounting 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. 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 destruction 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. Pollard v. Shaaffer, 1 Dall. 210; Fowler, &c. v. Bott, &c., 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

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