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the parties against each other at an end by the termination of the relation of landlord and tenant. If the lessor buys the term or the lessee buys the reversion, the relation is also at an end.

An actual eviction of the tenant by paramount title or the wrongful act of the landlord terminates the relation, and absolves the tenant from liability for subsequently accruing rent, even such as would be past due the next day, as when the landlord enters on the day the rent is due and ousts the tenant for breach of condition to pay the rent that day. Taking part of the premises by paramount title relieves the tenant as to so much.

$ 115. Termination by forfeiture: Covenants and conditions. Forfeiture refers to the right of the lessor to terminate the lease for breach of condition express or implied. By the strict rule of the common law none but the parties or their heirs could take advantage of breach of conditions; but by statute the right has been extended to grantees. All conditions are strictly construed by the courts, because they do not favor forfeitures. For example, a condition of forfeiture for non-payment of rent was enforcible only in case there was demand for it on the land the day it was due and near sunset. There is no right to forfeiture for breach of a mere covenant, in the absence of a statute so providing. But there were certain conditions implied at common law, for the breach of which the lessor or his grantee could terminate the lease, though there was nothing said in it as to termination for that cause; thus, it was held that by the tenant committing waste, or attempting to convey in fee to the destruction of the lessor's title, his term was forfeited by a condition implied in the nature of the lease. There are also statutes to be found in most of the states which provide that the lessor may terminate the lease for non-payment of the rent, and in certain other cases, opportunity being given the tenant by the statute to save his term by performing his obligation within a certain time, as by the day of the hearing on the proceeding to oust him. In the absence of such a statute or a provision for forfeiture contained in the lease, the term is not forfeited by breach by the tenant of his covenant to repair, pay taxes, insure, pay rent, not sublet, not assign, use the premises only for specified purposes, or the like.

116. Same: Notice and waiver. Inasmuch as it is purely optional with the lessor whether he will avail himself of the forfeiture, the term is not ended by the mere breach of the condition, for that would enable the tenant to take advantage of his own wrong to escape liability, which the law permits to none. For the same reason, if the lessor desires to avail himself of the forfeiture, he should explicitly notify the tenant of such intention by some clear and unequivocal words or act, such as making entry, bringing suit for the possession, giving a lease to another, or the like. He must also show that he has done everything necessary to avail himself of the forfeiture, and has done nothing since the act with knowledge of it which amounts to a waiver of the default, such as accepting rent accruing since the breach, demanding or bringing suit for it, or neglecting to assert his right till the tenant has had time to assume that no forfeiture would be de

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manded and has acted on that assumption. Equity will generally relieve the tenant from forfeiture when compensation can be made.

$ 117. Same: Waste, disclaimer, and notice to quit. By the statute of Gloucester (1278) 6 Edw. I, c. 5, which is believed still to be the law generally in this country in this respect at least, it was enacted that an action of waste shall lie against any tenant for life or years, and on proof of waste the plaintiff shall recover the premises wasted as well as damages. The forfeiture is merely of the part wasted and not of the whole premises (4). Since notice to quit is necessary to oust a lawful tenant at will, one who commits waste forfeits his right to notice to quit. Likewise, a tenant for life, years, at will, or from year to year, who denies the landlord's title and sets up title in opposition to him, thereby forfeits his term and all notice to quit. The rule of forfeiture for disclaimer or waste is based on the principle that there is tacitly annexed to every lease a condition that if the lessee shall do anything that may injuriously affect the title of his lessor, the lease shall become void, and the lessor be entitled to re-enter; and also on the further ground that if the landlord were not entitled to sue immediately for possession he might lose his lands by the tenant's adverse possession or destruction of the premises. In one case the court said: The tenant, having disclaimed the title of the landlord and his own relation of tenant, cannot invoke the protection and advantages of that relation. The defendant's answer expressly makes this denial of title and holding



(4) Jackson v. Tibbetts, 3 Wend. 341.

the possession as tenant, or that plaintiff was entitled to the possession. The effect of this denial was to make the defendant a trespasser. He was not entitled to any notice to quit. Whenever he assumed to hold in defiance of the plaintiff's title, the plaintiff was authorized to maintain his action for the recovery of the premises, and he could not set up the denial of title, and then claim the benfit of holding in subordination” (5).

§ 118. Surrender. This is a yielding up by the tenant and acceptance by the landlord of the possession of the demised premises in such a way as to extinguish the term by mutual consent, and may be either express or implied. In sustaining an injunction obtained by a lessor to restrain removal of a tenant's goods subject to the lien for future rent, it was contended that the term had been surrendered. The court defined surrender, and then added: The lease being terminated by agreement, the lessee is, of course, discharged except for rent already accrued. To constitute such agreement it is not necessary that express words should be used to that effect. It is sufficient if the reasonable inference from the acts of the parties and the circumstances under which they are performed is that such was the understanding. But where acts are relied upon as evincing the understanding they should be such as are not easily referable to a different motive. No express agreement was made in this case. The acts relied upon as evincing the agreement were the acceptance of the keys by the plaintiff, and the leasing of the property to another tenant. But the plaintiff insists that these acts

(5) McCarthy v. Brown, 113 Cal. 15.

are insufficient because, after the premises were vacated and the keys left with him, he could not properly refuse to receive the keys and take charge of the property, and lease it to another person for the best rent which he could obtain, so as to diminish the damages which he would otherwise sustain. There is much force in this position. What the inference would be from the mere receipt of the keys and the leasing of the premises by the landlord to another person, we need not determine. There is a circumstance in this case which we deem of controlling importance. The plaintiff, at the time of the alleged surrender, had brought this action to secure the payment of the rent yet to accrue. He had brought it in view of an apprehended abandonment and the fact that the rent called for by the lease was greater than the actual rental value; yet not a word was said about dismissing the action, or discharging the lessee from the claim made in this action. In our opinion no discharge was agreed upon, and the defendant Stearns remained liable” (6).

$ 119. Same: Conflicting views. In an action by a landlord against a tenant for damages, the court said: “It appears that defendants removed from the premises June 30, 1888, and sent the keys to plaintiff, claiming that plaintiff had not complied with his contract. Plaintiff did not at once enter, but on Aug. 3 commenced an action to recover rent for the months of July and August; September 1, while that action was pending, he called upon the defendants and requested them to return and occupy the premises, which they refused to do. He then took posses

(6) Martin v. Stearns, 52 Iowa 345.

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