LEASES.

EPITOME OF CASES.

Sec. 441. Construction of leases. A covenant in a lease "to provide the said lessee with a suitable right of way to get to and from said lot" is not performed by showing the existence of the way by necessity. Bunker v. Pineo, 86 Me. 138 (29 Atl. Rep 959). Where a written lease provides that the rents, whether due or to become due, shall be a perpetual lien on all goods, merchandise, furniture and fixtures of the lessee, and is filed in pursuance to the law concerning chattel mortgages, it will, as to such provision, be treated as a chattel mortgage. Greeley v. Winsor et al., 1 S. Dak. 117 (45 N. W. Rep. 325). Where the lease provides that the lessee may make improvements and remove them on the expiration of the lease, he has a reasonable time after the term in which to remove the improvements, but he is confined during that time to the right of ingress and egress for that purpose, and cannot retain possession. Caperton et al. v. Stege, 91 Ky. 351 (15 S. W. Rep. 870). Where a lease provided that the lessees might erect buildings and machinery, and that the same should form part of the realty, but that the lessees [might remove it upon the termination of the lease by paying all the rents and taxes, it was held that such provision covered machinery on the land at the time of the execution of the lease, and that the lien of the lessors for unpaid rent was superior to the rights of the holder of a chattel mortgage given by the lessees. Pendill et al. v. Maas et al., 97 Mich. 215 (56 N. W. Rep. 597). Where in a lease of a stone quarry the lessor agrees to take the implements and improvements placed therein by the lessee at the end of the term, at the valuation to be fixed by arbitrators, it is not necessary for the lessee to tender these implements, etc., to the lessor at the expiration of the lease. White Stone Quarry Co. v. Belknap & Dumesnil Stone Co.,

Ky.

(16 S. W. Rep. 354). of re-entry upon the re-entry working a forfeiture of the rents to be paid during the full term of the lease," and does not declare that a breach of the lessee shall determine the lease, the lessor, who has re-entered upon a writ of restitution for non-payment of rent, may recover from the lessee rent for the entire term, less such rent, if any, as he has obtained from a reletting of the premises after the re-entry. Grommes v. St. Paul Trust Co., 147 Ill. 634 (35 N. E. Rep. 820; 37 Am. St. Rep. 248). For construction of particular leases, see, City Power Co. v. Fergus Falls Water Co., 55 Minn. 172, 1006 (56 N. W. Rep. 685); Douglas v. Herms, 53 Minn. 204 (54 N. W. Rep. 1112); Smith v. Hess, 83 Ia. 238 (48 N. W. Rep. 1030); Hukill v. Guffey et al., 37 W. Va. 425 (16 S. E. Rep. 544); Scott v. H. C. & B. Co., 135 N. Y. 141 (31 N. E. Rep. 1102); Genet v. D. & H. C. Co., 136 N. Y. 593 (32 N. E. Rep. 1078; 19 L. R. A. 127); Loeser v. Liebman et al., 137 N. Y. 163 (33 N. E. Rep. 150); Friedland v. Myers, 139 N. Y. 432 (34 N. E. Rep. 1055); Robinson et al. v. Beard et al., 140 N. Y 107 (35 N. E. Rep. 441); Kew v. Trainor, 150 Ill. 150 (37 N. E. Rep. 223); Consolidated Coal Co. v. Peers, 150 Ill. 344 (37 N. E. Rep. 937); Monnett v. Potts,

Where a lease gives the lessor a right breach of covenants "without such

Ind. App. Mass.

(37 N. E. Rep. 729); Ober v. Brooks, (38 N. E. Rep. 429); Barnhart v. Lockwood, 152 Pa. St. 82 (25 Atl. Rep. 237); Packard v. Corporation for Relief of Widows, 77 Md. 240 (26 Atl. Rep. 411); Heims Brewing Co. v. Flannery, 137 Ill. 309 (27 N. E. Rep. 286); Kash v. Huncheon, 1 Ind. App. 361 (27 N. E. Rep. 645); Nicholls v. Barnes, 39 Neb. 103 (57 N. W. Rep. 990).

Sec. 442. Renewal of lease. The right to elect to renew a lease should be exercised at the time provided for in the lease or it will be abandoned. Bullock v. Grinstead, 95 Ky. 261 (24 S. W. Rep. 867). Where it was provided in a lease that "at the end of the term hereby demised, this lease shall be renewable," at the option of the lessee or his legal representatives, "and every new lease shall contain all the covenants,' "it was held that such lease provided but for one renewal and the ruling is put upon the ground that otherwise

it would create a perpetuity. Diffenderfer v. Board President, etc. St. Louis Public Schools, 120 Mo. 447 (25 S. W. Rep. 542). Where a lessee for a definite term, having an option for a renewal at the expiration of such term, notifies the lessor before the termination of the original term that he will not desire the premises longer, upon the faith of which notice the lessor advertises the premises for rent and expends money in their improvement with a view to occupying himself or leasing to another, such lessee will not be allowed to change his mind and hold the premises by serving a notice of such intent on the day of the termination of the original term. Grenier v. Cota, 92 Mich. 23 (52 N. W. Rep. 77). Under a lease for one year," with the privilege of four years additional lease," which contained the further provision that if the lessee shall continue in possession after the termination of the contract "then this contract shall continue in full force for another year and so on from year to year," and the lessee remained in possession after the expiration of the first year it was held that he thereby became bound for the full term of four years. Harding et al. v. Seeley et al., 148 Pa. St. 20 (23 Atl. Rep. 1118). In the absence of a stipulation to the contrary, a lessee for a definite period having a right of renewal for an additional period cannot be deprived of this privilege by the lessor's demand for a higher rate of rent. Hughes v. Windpfennig, Ind. App. (37 N. E. Rep. 432).

Sec. 443. Destruction of premises. Under N. Y. Laws 1860, ch. 345, upon the destruction of a building occupied by a lessee the relation of landlord and tenant is dissolved, unless he elects that it shall continue. Fleischman v. Toplitz, 134 N. Y. 349 (31 N. E. Rep. 1089). This statute applied to particular facts. New York Real Estate & Bldg. Imp. Co. v. Motley, 143 N. Y. 156 (38 N. E. Rep. 103). A tenant covenanting to restore buildings in case of their destruction may maintain an action for the value of such buildings in case of their destruction. Anthony v. N. Y. P. & B. R. Co., Mass.

(37 N. E. Rep. 780). Minn. Laws 1883, ch. 100, construed-destruction of premises. Minneapolis Co-operative Co. v. Williamson, 51 Minn. 53 (52 N. W. Rep. 986; 38 Am. St. Rep. 473). In case of the total destruction of the premises,

where the lessee pays his rent monthly in advance, he can recover the money paid for the rest of the month. Porter v. Tull, 6 Wash. 408 (33 Pac. Rep. 965; 36 Am. St. Rep. 172).

Sec. 444. Miscellaneous notes. A lessee who has neither signed nor accepted a lease cannot maintain an action thereon. Castro et al. v. Gaffey, 96 Cal. 421 (31 Pac. Rep. 363). A lease from a life tenant terminates upon his death. Lowrey et al. v. Reef, 1 Ind. App. 244 (27 N. E. Rep. 626). A reservation in a lease of the right to sell premises and to terminate the lease upon such sale is valid. Shaw v. Appleton, 161 Mass. 313 (37 N. E. Rep. 372). A lease of property which is subject to a mortgage is dissolved by the sale of the property, but not by the suit to foreclose. Thompson et al. v. Flathers, 45 La. An. 120 (12 So. Rep. 245). An assignment of a lease or any portion thereof, in order to be valid, must be with the consent of the landlord. Mabry v. Harp, 53 Kan. 398 (36 Pac. Rep. 743). A provision in a lease forbidding assignment without the lessor's consent is waived by his accepting rent from the assignee of the lessee. Randal v. Tatum et al., 98 Cal. 390 (33 Pac. Rep. 433). Where the lease prohibits subletting, there can be no valid sublease without the consent of the lessor. Meyer v. Rothschild, 46 La.

(15 So. Rep. 383). A contract for a term of years, at a stipulated yearly rent, reserving a lien on all crops for its payment, is a lease, although it contain a provision that upon the payment of a certain amount of rent, the lease was to terminate, and the lessor to deed the lessee the land. Crinkley et al. v. Egerton et al., 113 N. C. 444 (18 S. E. Rep. 669). A written agreement giving the right to the use and possession of a tract of land with privilege of removing growing timber thereon, is a lease, and not a license. Crane v. Patton, 57 Ark. 340 (21 S. W. Rep. 466). A lessor who has received the full consideration for his lease cannot question the right of his lessee to hold. Tisman v. School Dist. No. 10, 90 Mich. 510 (51 N. W. Rep. 549). Where a lessor agreed to improve a certain portion of the premises, but fails to do so, the lessee is not bound to make such improvement, and then look to the lessor for reimbursement, but he may recoup the difference between the rental value of the property improved and unim

proved. Mc Coy v. Oldham, 1 Ind. App. 372 (27 N. E. Rep. 647). One who accepts a lease of ground belonging to a religious association and used for the purposes of worship, subject to such rules and regulations as may be adopted by the association, may be enjoined from making any use of the ground in violation of the rules and regulations of the association. Round Lake Ass'n v. Kellogg, 141 N. Y. 348 (36 N. E. Rep. 326). "The possessor of real estate under an unrecorded lease is thereunder invested with no right whatsoever as against a seizing attachment creditor." Flower et al. v. Pearce et al., 45 La. 583 (13 So. Rep. 150).

Cal. Civ. Code, § 1941, which provides that the lessor of a building intended for the occupation of human beings must put it in condition for such occupation, does not create an implied warranty in every lease of a house, that the same is in a habitable condition when leased. Angevine v. Knox-Goodrich, 31 Pac. Rep. 529 (18 L. R. A. 264). Under a statute (Mass. Stat. 1885, ch. 374, § 111) requiring the owner of the building to have the same made "safe and secure, or taken down," upon notice of the same having been declared unsafe by the municipal authorities, it is held that a lessor who, upon receipt of such a notice, disturbs the possession of his lessee by unnecessarily taking down a building which could have been repaired, is guilty of a breach of his covenant for quiet enjoyment. Kansas Inv. Co. v. Carter, 160 Mass. 421 (36 N. E. Rep. 63). O. Rev. Stat., § 4364, construed and applied-liability of premises leased for the sale of intoxicating liquors for fines, costs and damages assessed against persons occupying the Mullen v. Peck et al., 49 O. St. 447 (31 N. E. Rep.

same.

1077).