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apportionment of the rent should be applied in the former as well as in the latter case" (5).
A provision in the lease that the lessee shall not be required to rebuild if the premises are destroyed by inevitable accident does not relieve him from liability to pay rent in that event.
8 81. Same: Statutory rules. Eminent domain. There are statutes in a number of states providing that in case of the destruction of the buildings on the premises by inevitable accident, the lessee shall be relieved from payment of the rent in proportion to the value of the use of the building destroyed. These statutes do not apply to destruction of such nature that repairs may be made without rebuilding, unless the premises are rendered untenantable, nor to destruction from gradual decay. In no case is the lessee entitled, after the destruction of the premises, to recover back any part of an instalment of rent paid in advance. If the tenant desires to avail himself of the benefits of these statutes, he must abandon his lease and surrender possession to the lessor. The statute was not designed to absolve him from the payment of rent and permit him still to retain possession and continue to enjoy the premises. He is sufficiently protected from the hardships of the common law rule if he is given an election to continue or terminate the lease, upon the destruction of the buildings.
Public appropriation of the premises by eminent domain does not relieve from liability for rent. The tenant
(5) Graves v. Berdan, 26 N. Y. 498.
receives from the public as compensation the value of his lease, and must continue to pay rent (6).
§ 82. Payment of rent: To whom payable. Payment in advance may be required by the terms of the lease, but whether required or not, actual payment in advance is a good payment against the lessor and all others, his assigns, grantees, and creditors. The rent must be paid to the lessor or his grantee, heirs, assigns, or their duly constituted agent; no payment to any other will be of avail in discharge of the rent, unless it is made to protect the tenant from a paramount title, as to the lessor's lessor to avoid forfeiture of the term, or by order of court on judgment in garnishment in favor of the lessor's creditor, or in making repairs the lessor has covenanted with the lessee to make and pay for, or the like. Payment may be made to the officer having a distress warrant. Payment may also be made to the attorney prosecuting the suit for the lessor to recover the rent. It has also been held that payment to one in possession claiming title and of whom the tenant leases is good for all rent accrued and paid for before judgment against the claimant in possession.
§ 83. Same: Medium of payment, time, and place. The medium of payment may be money or anything else the parties may agree on, but an agent to collect rent cannot agree to accept anything else than the rent specified in the lease, without special authority. This applies to attorneys and sheriffs. The taking of the tenant's note, check, or security for rent is not payment; but the
(6) Stubbings v. Evanston, 134 Ill. 37.
acceptance by the lessor of another's note or check is presumptively in payment. If the rent is a pair of spurs at Easter or twelve shillings at the next feast, the tenant must pay the spurs at Easter or his election is gone, and at the next feast he can pay only money. An agreement to pay in money or provisions gives the choice to the tenant. A tender in the kind agreed must be made at the time agreed, not before nor after ; but if then made and refused, stops all right for interest while the tender is kept good, and deprives the lessor of the right to recover costs if he sues for the rent later while the tender is kept good. If the rent falls due on Sunday or a holiday payment the next day is in time. If no place of payment is specified, it is payable on the land, and the lessor must come to demand it before it is in default. The lessor has a right to refuse a tender under such circumstances that he is unable to count the money if the tender is conditioned that it be accepted in full.
§ 84. Same: Receipts, application of payments, and mistakes. The lessee making payment has a right to de mand a receipt under the hand of the lessor or his authorized agent. Such receipts are presumptive evidence of payment but may be explained and disputed. A receipt for one month's rent raises a presumption in the absence of indication to the contrary that the rent prior to that has all been paid. The lessee has a right at the time of making the payment to direct how it shall be applied, whether to the past or future, and to what month; but if he does not then specify how it shall be applied, the lessor may apply it to any demand due that he has against the lessee. But if the lessor receives from one of joint tenants money he knows to belong to both, and which he knows is intended as payment of rent, he has no right to apply it on his claim against one of them because no specification as to application was made. Payments in advance in absence of knowledge that the lessor had no title or that the lessee had been evicted, or by mistake in excess of liability, may be recovered back unless the tenant has enjoyed the advantage of it. If the tenant pays in advance and is evicted during the term, he may recover a proportionate part of the payment if the eviction was by paramount title, but not for the accidental destruction of the premises by fire or otherwise.
$ 85. Remedies of landlord for rent. The principal remedies of the landlord for the recovery of the rent are the seizure of a distress by virtue of common law, lease, or statute; the enforcement of a lien on the tenant's goods therefor, given by the lease or by statute; an action of covenant, debt, assumpsit, or for use and occupation; or a right to enter and oust the tenant for breach of condition in the lease, that if he or his assigns fails to pay the rent due at the appointed time the lessor or his heirs may enter and terminate the lease, and the lessee and all claiming under him remove and put out, and thereupon bring ejectment. The condition is no redress in itself; it merely enables the landlord to stop further accumulation of rent, and terrorizes the tenant to pay for fear he will lose his lease.
$ 86. Distress: In general. The common law distress was not in itself a remedy, but merely a coercive measure to embarrass the tenant till he would pay to be relieved. It consisted in the seizure of the tenant's goods, and was available to the lessor only when rent was in arrear beyond the time allowed by law for payment, and was certain in amount or reducible to certainty. It must also be payable at a certain time, or it could not be alleged to be in arrear. If distress is wrongfully taken the lessee may recover it and costs in replevin for the wrongful taking. At common law no right to take distress existed unless there was a tenure between lessor and lessee or the right was expressly reserved in the lease. While the lessor held the distress he was barred of action on the covenants for the rent. Where the right to take distress now exists it is so regulated by statute as to avoid most of its common law rigors, and reduce it to a summary process for recovery of rent. It is believed that there is no right to take distress in Alabama, Michigan, Massachusetts, Minnesota, Missouri, Montana, New York, North Carolina, Oklahoma, Wisconsin, and probably other states. At common law a distress could be levied only on the demised premises, and the goods of a stranger found on the premises were in many if not most instances liable to seizure for this purpose; but now by statute in several states where taking of distress is allowed, the distress may be levied anywhere in the county, but only on the goods of the tenant. This remedy is available only for non-payment of rent, and is not available as a remedy for breach of other covenants; but where personal property is leased with the premises for one rent, distress for the whole lies. Unless the relation of landlord and tenant