§ 945. Distinction between total and partial destruction of

leased property.

In England no distinction is made between partial destruction of the leased premises as where leased land remains after the calamity, and total destruction as where the lease is of a single room or story of a building without land, and the entire building is destroyed. In the latter case, as well as the former, the tenant must pay rent. In the United States, however, the tenant is relieved in case of total destruction of the leased premises. It is difficult to see how total destruction of the property leased should have any effect upon a covenant to pay rent if partial destruction has none. The only ground for relieving in the former case is because there has been a failure of consideration. If a lease were dealt with like an ordinary bilateral contract this would be true;" but it should equally follow that the partial failure of consideration in the latter case should serve as a partial defense.

Lord Chancellor Northington expressed surprise that it was considered so clear that the landlord could recover rent at law, and said that "when an action is brought after the house is burnt down, there is a good ground of equity for an injunction till the house is rebuilt." The bill was in fact dismissed because the landlord in his answer offered to cancel the lease, and the tenant declined to accept a cancellation. The same Chancellor is said to have proceeded upon the same theory in Camden v. Morton, 2 Eden, 219; and Lord Apsley adopted it in Steele v. Wright, cited in 1 T. R. 708. See also Weigall v. Waters, 6 T. R. 488, 489, per Lord Kenyon.

'Izon v. Gorton, 5 Bing. N. C. 501.

8 McMillan v. Solomon, 42 Ala. 356, 94 Am. Dec. 654; Ainsworth v. Ritt, 38 Cal. 89; Alexander v. Dorsey, 12 Ga. 12, 56 Am. Dec. 443; Womack v. McQuarry, 28 Ind. 103, 92 Am. Dec. 306; Shawmut Nat. Bank v. Boston, 118 Mass. 125, 128; Graves v. Berdan, 29 Barb. 100, 26 N. Y. 498; Hilliard v.

New York &c. Co., 41 Ohio St. 662, 666, 52 Am. Rep. 99; Harrington v. Watson, 11 Ore. 143, 145, 3 Pac. 173, 50 Am. Rep. 465; Hahn v. Baker Lodge, 21 Ore. 30, 34, 27 Pac. 166, 13 L. R. A. 158, 28 Am. St. Rep. 723; Conn. Mut. Life Ins. Co. v. United States, 21 Court of Claims, 195, 201. But in Kentucky the English law was followed, Helburn v. Mofford, 7 Bush, 169, until changed by statute. See Sun Ins. Office v. Varble, 103 Ky. 758, 46 S. W. 486, 41 L. R. A. 792. See also Humiston v. Wheeler, 175 Ill. 514, 51 N. E. 893; Ainsworth v. Mount Moriah Lodge, 172 Mass. 257, 52 N. E. 81; Uhler v. Cowen, 199 Pa. 316, 49 Atl. 77. In Porter v. Tull, 6 Wash. 408, 33 Pac. 965, 36 Am. St. Rep. 172, the tenant whose rent was payable monthly in advance was allowed to recover because of failure of consideration a portion of a month's rent after the total destruction of the leased premises during the month.

'On the independency of covenants in leases, see supra, § 890.

In one case it was intimated that a calamity occurring before the tenant was entitled to possession under the lease, although not causing the total destruction of the property, entitled the tenant to rescind the lease, 10 but this distinction can hardly be supported. Though it is not clearly admitted in the cases, a contract to make a lease should stand on the same footing as a contract to convey a freehold estate."

§ 946. Comparison of a lease with a contract to sell.

The distinction, however, between an actual lease and a contract either to make a lease or to convey a freehold, is obvious. In the first case the lessee acquires by the deed an actual legal estate. If that is what he bargained for, it is clear that immediately after the conveyance he has received the consideration for the rent. No further performance is due from the lessor. This would be abundantly clear if rent were customarily paid in a lump sum on execution of the lease, instead of in instalments at stated periods. It is, therefore, not a little odd to find it universally admitted that it is a harsh rule of strict law which requires a tenant to

10 Wood v. Hubbell, 10 N. Y. 479, 487. Compare Edwards v. McLean, 122 N. Y. 302, 25 N. E. 483.

11 In Bacon v. Simpson, 3 M. & W. 78, it was held that a plaintiff who contracted to assign a lease of a furnished house could not recover damages from one who contracted to buy it, and refused to perform on account of partial destruction because he himself was not ready to perform. It is true the action was at law, and the lease included personal as well as real property, but the decision is not rested on these grounds. In Counter v. Macpherson, 5 Moo. P. C. 83, the landlord agreed to put the premises in repair and put up an additional building. Before this work was completed, the premises were partially burned. The landlord was held not entitled to specific performance because the work was not completed, and this seems a sufficient reason. Huguenin v. Courtenay, 21

S. C. 403, 53 Am. Rep. 688, was a suit by the seller for specific performance of an agreement for the sale of a lot of land on the shore of an island, the fee of which was nominally in the State, the occupants having legally an estate from year to year and paying as rent one penny annually, but having for practical purposes the absolute ownership. Before the day appointed for transfer of title the sea washed away a portion of the lot. The court, though expressing assent to the doctrine of Paine v. Meller, 6 Ves. 349, gave judgment for the defendant, and distinguished the case of a sale of a leasehold estate. On appeal the decision was affirmed. The decision was clearly right on any view, because the agree ment was subject to a condition which so far as appeared had not been performed, and the appellate court made this a secondary ground of decision.

pay rent when the leased premises are destroyed, a rule from which it was decided only after some conflict that equity would not relieve, to find that in Kentucky,12 and New York, 13 by statute, and in South Carolina by judicial decisions,11 a tenant, the actual owner of a legal estate, is relieved from liability by substantial destruction of the premises, and that almost universally in the United States total destruction of the leased premises terminates the tenant's liability, and yet to find frequently, in these same jurisdictions, that one who has agreed to buy real estate in the future, though perhaps discharged at law by accidental injury to the property, is regarded by a court of equity as already having such an ownership in the property that he must pay for it. The facts and opinion of the court in Huguenin v. Courtenay are suggestive in this connection. The court says, in substance, if a tenant is relieved by destruction of the leased premises, he surely cannot be liable if the premises are destroyed after an agreement to lease in the future; and a lease is a lease though it be for 999 years and whatever the rent; but if, instead of a lease substantially equivalent to a fee, the subjectmatter of the agreement were in fact a fee, the seller would be entitled to the price.

15

Doubtless the reason why a tenant is relieved to the extent that he is in case of accidental injury or destruction to the leased premises, is because the parties to a lease are apt to

12 Ky. Stat., Sec. 2297; Sun Ins. Office v. Varble, 103 Ky. 758, 46 S. W. 486, 41 L. R. A. 792.

13 Chap. 345 of Laws of 1860 provides "the lessees or occupants of any building which shall, without any fault or neglect on their part, be destroyed or be so injured by the elements or any other cause as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof after such destruction or injury, unless otherwise expressly provided by written agreement or covenant; and the lessee or occupants may thereupon quit and surrender possession of the leasehold

premises and of the land so leased or occupied." For the construction of this statute, see Suydam v. Jackson, 54 N. Y. 450; Butler v. Kidder, 87 N. Y. 98; Edwards v. McLean, 122 N. Y. 302, 25 N. E. 483; New York, etc., Co. v. Motley, 143 N. Y. 156, 38 N. E. 103. But where rent was payable on the 1st of each month in advance, and the premises were destroyed by fire on January 2, 1914, the tenant was liable for the January rent. Pikeway Realty Corp. v. Cohen, 150 N. Y. S. 23.

14 Ripley v. Wightman, 4 McC. 447; Coogan v. Parker, 2 S. C. 255, 16 Am. Rep. 659.

15 21 S. C. 403, 53 Am. Rep. 688.

“A

regard it rather as a contract than as a conveyance. lease is in one sense a running rather than a completed contract. It is an agreement for a continuous interchange of values between landlord and tenant, rather than a completed contract." 16 If this were granted it would only make a lease analogous to a contract for the sale of real estate, as distinguished from an actual conveyance, and if the tenant is relieved in the former case, the purchaser should be in the latter. Yet the same court which exhibited such tenderness for the lessee as thus to construe a lease has twice decided that a purchaser is liable to pay to the vendor the contract price for land taken by eminent domain before transfer of the property, becoming entitled thereby to damages for the taking. In the later of these two decisions the assessed damages were exactly one-third of the contract price. 18

17

16 Whitaker v. Hawley, 25 Kan. 674, 687, 37 Am. Rep. 277, per Brewer, J.

17 Kuhn v. Freeman, 15 Kan. 423; Gammon v. Blaisdell, 45 Kan. 221, 25 Pac. 580. When Kuhn v. Freeman was decided, the eminent judge who wrote the opinion of the court in Whitaker v. Hawley, supra, was a member of the court. A contrary decision is Kares v. Covell, 180 Mass. 206, 62 N. E. 244, 91 Am. St. Rep. 271.

18 A lease of personal property might be thought to approach more closely to a continuing contract, but such leases are rare. In the Southern States leases of slaves were formerly not unusual, and opinion was divided as to whether the loss in case of death fell upon the lessor or lessee. It was held that the lessee was excused from paying the stipulated hire in Collins v. Woodruff, 9 Ark. 463; Dudgeon v. Teass, 9 Mo. 857; Bacot v. Parnell, 2 Bailey, 424; Muldrow v. Wilmington &c. R. R., 13 Rich. 69; Townsend v. Hill, 18 Tex. 422; George v. Elliott, 2 Hen. & Mun. 5. So emancipation by law was held to relieve the hirer from any obligation to pay rent thereafter. Wilkes v. Hughes, 37 Ga. 361; Mundy v. Robin

son, 4 Bush, 342. On the other hand, by other courts it was held that the hirer was not relieved in case of the slave's death: Ricks's Adm. v. Dillahunty, 8 Port. 134; Lennard v. Boynton, 11 Ga. 109; Harrison v. Murrell, 5 T. B. Mon. 359 [see also Redding v. Hall, 1 Bibb, 536; Griswold v. Taylor's Adm., 1 Met. (Ky.) 228; Hughes v. Todd, 2 Duv. 188]; Harmon v. Fleming, 25 Miss. 135; Hicks v. Parham, 3 Hayw. (Tenn.) 224, 9 Am. Dec. 745; Wharton v. Thompson, 9 Yerg. 45; Dickinson v. Cruise, 1 Head, 258; or emancipation, Coward v. Thompson, 4 Coldw. 442. In all these cases it is to be noticed there was not simply deterioration, but absolute destruction of the leased property. But slaves were an unusual kind of chattel, and it was held that the lease of a slave gave the lessee a property right, an estate in the slave so to speak, for the term of the lease: Smoot v. Fitzhugh, 9 Port. 72; Harmon v. Fleming, 25 Miss. 135; McGee v. Currie, 4 Tex. 217, 222. Specific performance was also granted of contracts relating to them. Murphy v. Clark, 9 Miss. 221; Williams v. Howard, 3 Murph. 74; Horry v. Glover, 2 Hill's

§ 947. Risk of loss in the Roman Law was on the buyer.

In the Institutes of Justinian it is laid down: 19 "As soon as the contract of purchase and sale is made, which is, if the transaction is without writing, when the price is agreed, the risk of the thing sold immediately falls upon the buyer, although it has not yet been delivered to him. Thus, if the slave dies or is injured in any part of his body, or the whole or any part of the house is burned, or the whole or any part of the land is carried away by flood or is diminished or injured by an inundation or by a tempest which overthrows the trees, it is the loss of the buyer, who must pay the price though he does not receive the thing," and though, it may be added, delivery was necessary according to the Roman law for the transfer of title, as it is generally in the modern Civil law.

This view seems to have been little questioned by the Roman writers, though Africanus says that if the treasury seizes upon an estate which the owner has agreed to sell but has not delivered, the owner, though not liable for damages,

Ch. 515; Henderson v. Vaulx, 10 Yerg. 30, 37. Compare Randolph v. Randolph, 6 Rand. 194.

A lease of a furnished house includes personal as well as real property. In Whitaker v. Hawley, 25 Kan. 674, 37 Am. Rep. 277, it was held that the absolute destruction of the personal property relieved the tenant from the payment of the rent reserved as a lump sum for both personalty and realty, but it was held otherwise in Bussman v. Ganster, 72 Pa. 285. See also Womack v. McQuarry, 28 Ind. 103, 92 Am. Dec. 306; Clinton v. Hope Ins. Co., 45 N. Y. 454. A contract to assign the residue of a term in a furnished house was held excused by the destruction of the premises. Bacon v. Simpson, 3 M. & W. 78.

In the Civil Law a hiring gives the hirer merely a contractual right, and wherever that system of law prevails, the hirer is excused not simply by the destruction, but also by the injury of the leased property, to an extent pro

portional to the injury. Hunter's Roman Law (2d ed.), 506, 508; Pothier, Contrat de Louage, sections 138-143; Code Civil Art. 1722, 1 Bell, Comm. (9th ed.), § 1208; Windscheid, Lehrb. des Pandekt., § 400; Code of Louisiana, Art. 2667. The law in Newfoundland seems to be the same, by custom. Broom v. Preston, Sel. Cas. S. C. Newf. 491 (referred to in Gates v. Green, 4 Paige, Ch. 355). A lease in the Civil Law is, therefore, analogous to a contract of sale. The civilians who support the doctrine of the Roman law as to risk in contracts of sale, have always been troubled to reconcile the law as to leases. Hofmann seems clearly right in saying that reconciliation is impossible. Periculum beim Kaufe, 18-21.

19 Lib. iii. Tit. xxiii. 3. The rule seems to be of great antiquity, and Dr. Franz Hofmann endeavors to show that it is of Greek origin. Periculum beim Kauf (Vienna, 1870), pp. 169188.