Coogan v. Parker.

ject-matter, out of which rent is reserved in a lease for years, by an act of God, or of public enemies, the tenant may elect to rescind, and, on surrendering all benefit thereunder, shall be discharged from the payment of rent.

Bayley v. Lawrence, 1 Bay, 499, is the first reported case in which this principle was applied. The report of that case is exceedingly brief, and it appears, by the reporter's note, that it was omitted in the publication of the cases of 1792 Why this omission occurred, whether as the result of accident, or because the report did not sufficiently present the ground of the judgment of the court, is not explained. That was an action of covenant for rent in arrear, brought on a lease of a shipyard, at Hilton Head, for ten years, dated the 6th day of June, 1774. The defense was, that the defendant was driven off by the casualties of war and deprived of the enjoyment. It was resolved, per curiam, "that the defendant ought to pay for the time he peaceably enjoyed the premises, but not for the time he was prevented by the casualties of war." This is all that is given to us of the facts of the case, or of the conclusions of the court. It does not appear whether the immediate cause of the defendant's being "driven off" and "deprived of the enjoyment" of the shipyard was force or fear acting upon him personally, or the destruction of the property that constituted the main value of the shipyard, as such. Nor does it appear whether or not the defendant resumed possession of the premises after the end of the hostile occupation, which must have ceased before the end of the term. We are left to infer in deducing these important facts, vital to the understanding of the authority of the case. It is reasonable to infer that the principal value of the shipyard consisted in the buildings, ways, and other conveniences for building, repairing and launching vessels. Lands convenient for such a purpose are not likely to be valuable for agricultural, nor, when remote from populous communities, for other general purposes. Nor is it to be assumed that the site, occupied by this shipyard, possessed any extraordinary or peculiar value, as compared with other lands similarly related to the waters of that extensive harbor, so as to have formed an important element of the consideration upon which the rent reserved was agreed to be paid. As a hostile force would, naturally, seek to destroy the means by which an enemy could build and repair vessels, it is to be presumed that the conveniences and appliances that constituted the principal value of the

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shipyard were destroyed. If these conclusions are correctly drawn, the case is distinguished from Pollard v. Schaaffer, 1 Dallas, 210, where it was held that the occupation of leased premises by an alien enemy was no ground for a reduction of the rent agreed on. Under this view of Bayley v. Lawrence, its doctrine will be found fairly embraced within the statement, already made, of the ground assumed by the courts of this State. It would be an instance of relief granted, in the nature of rescission, on the ground of the substantial destruction of the subject-matter of the lease.

This doctrine was very fully drawn out in Ripley v. Wightman, 4 McC. 447. COLCOCK, J., says: "If a man lease a house for a year, and during the term it is rendered untenantable by a storm, the rent ought to be apportioned according to the time it was occupied." He places this upon the ground that "the title to the rent is founded on the presumption that the tenant enjoys the thing during the contract." The application of this privilege to the facts of that case involved the idea that in a lease of a dwelling-house, for the purpose of a residence, when the land that supports and adjoins the house is designated to be occupied only as accessory to such residence, the use of the house for that purpose is to be regarded as the proper subject-matter of the lease, and all other matters as incidental thereto; and also that the destruction of the house, to the extent of rendering it useless as a residence, is a substantial destruction of the subject-matter of the lease. We have here the distinction upon which the determinations of the courts of our State rest, which have been charged with carrying the law in a direction divergent from the proper course of the common law. It is involved in the question whether the actual physical destruction of the property, the usufruct of which was contemplated by the lease, is essential as ground for rescinding the lease, or whether the destruction of the possibility of an usufruct, such as was in contemplation of the parties to the lease, is sufficient ground for such rescission. It is very clear that the latter view has been judiciously settled in this State, and acquiesced in by both legislature and people for too many years to be disturbed at this time. It must be assumed that the relations of landlord and tenant, as they exist at this day throughout the State, have been constructed upon the idea of the law thus promulgated by the highest judicial authority of the State. It remains to be seen whether this view of the law VOL. XVI. — 84

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has not a higher sanction of authority and reason than the opposite doctrine.

The next case to be noticed was Bacott v. Parnell, 2 Bail. 424, which was decided on authority of Ripley v. Wightman. O'NEALL, J., says of Ripley v. Wightman: "In that case, the act of God was held a rescission of the contract." He applied the same rule in the same case before the court, holding that a contract for the hiring of a slave was ended by the death of the slave, that being the act of God. This same doctrine was again sanctioned in Corley v. Kleck ley, Dud. 35, and in Wilder v. Richarsdon, id. 323.

Before examining the merits of the position assumed by the courts of this State upon precedent and authority, it is important to ascertain whether this is in fact an open question under the English and American decisions.

As the doctrine above stated is applicable only to the case of a destruction of the premises by the act of God and the public enemies, it will be unnecessary to look into the great mass of cases, English and American, where the injury complained of arose from fire, either originating on the premises or adjoining them. Among the cases thus shut out of view are the following: Belfour v. Weston, 1 T. R. 310; Monk v. Cooper, 1 Ld. Raym. 1477, and 2 Strange, 763; Baker v. Holtzapffel, 4 Taunt. 45, and 18 Ves. 115; Walton v. Waterhouse, 3 Saund. 420; Bullock v. Domitt, 6 T. R. 650; Ld. Chesterfield v. Bolton, Com. Rep. 627; Leeds v. Cheatham, 1 Sim. 146; Izou v. Gorton, 35 Eng. C. L. 198; Loft v. Dennis, 102 id. 484; Willard v. Tillman, 19 Wend. 358; Hallett v. Wylie, 3 Johns. 44; Graves v. Berdan, 29 Barb. 100; S. C., 26 N. Y. 498; Magaw v. Lambert, 3 Penn. 444; Fowler v. Bott, 6 Mass. 63, and Phillips v. Stevens, 16 id. 238.

In all these cases it has been held that the destruction of leased premises by fire, occurring through accident or negligence, does not afford ground for relieving the tenant from the payment of rent. It is worthy of remark that in all these cases there is not one in which, so far as appears by the reports, the tenant put himself upon the distinctive ground of a right to rescind by an act of surrender. On the other hand, Baker v. Holtzapffel was decided on the ground that there had been no steps taken by the tenant in order u make a rescission effectual. These cases are strong authority for holding that, during the continuance of the lease, no abatement of rent can be claimed by reason of injury to the leased premises by

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fire. It has been generally assumed, however, and perhaps not without reason, that their effort is to deny the right of the tenant to relief in any form in such cases.

It will not be necessary to inquire whether cases of the destruction of the subject-matter of the lease by negligent or accidental fre are distinguishable from, or stand as exceptions to, the rule that the destruction of the subject-matter of the lease by the act of God or the public enemies, works a dissolution of the lease at the election of the lessee. If it can only be regarded as an arbitrary exception, still strong reasons have been urged why relief should not be extended to such cases. Loss by fire is an ordinary risk that may fairly have been considered within the contemplation of the parties. The exercise of prudence and care, on the part of the tenant who has control of the premises during the lease, may avert the danger, or at least diminish its injurious consequences. To throw the consequences of the loss wholly on the lessor diminishes unduly the interest prompting the tenant to the exercise of that care due in his relation to his landlord, while an unscrupulous tenant, with a hard bargain, would find himself tempted to destroy the premises secretly, in order to escape the payment of rent. These considerations are unanswerable, when the fire originates upon the premises in the possession of the tenant.

To undertake, in such cases, to draw a line between accidental and negligent fires would be impracticable, from the nature of the cause of inquiry.

We may also exclude from consideration, in the present connection, a class of cases in which the relation of landlord and tenant has been modified by covenants to maintain, support and repair, and to surrender possession of the premises at the end of the term in an agreed condition. Of these, 1 Dyer, 23, is an instance. In that case one bound by his covenant to sustain and repair the banks of a water-course was held liable on his covenant for damage occurring through an extraordinary flood. In this case, although the defendant was a lessee, no question was made as to any diminished value of the leased premises; nor was any demand for rent involved.

Canal Nav. v. Pritchard, 6 T. R. 750; Bullock v. Domitt, 6 id. 650; Lord Chesterfield v. Bolton, Com. R. 627; Arden v. Pullen, 10 M. & W. 321; Leeds v. Cheetham, 1 Sim. 146, and Phillips v. Stevens, 16 Mass. 238, are all cases of this class. In all these cases the rights of the parties depended upon the force and effect of

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covenants to repair, and, accordingly, they have no bearing on the question under immediate consideration.

Paradine v. Jane, Alleyn, 26; Sty. 47; and Pollard v. Schaaffer, 1 Dallas, 210, involve a somewhat similar principle, but do not touch the present question. In both of these cases the complaint was that the defendant had been deprived of the possession of the leased premises by an alien enemy, and not that the subject-matter of the lease had been destroyed. The thing leased remained in existence still, although the lessee had incurred the personal misfortune of losing the advantage he had anticipated from it.

Hart v. Windsor, 12 M. & W. 66; Sutton v. Temple, 12 id. 52, and Smith v. Marrable, 11 id. 5, are cases in the Exchequer at variance with themselves upon the question whether there is incident to a lease an implied covenant that the premises are fit for the purpose for which they were hired. In Hart v. Windsor, and Sutton v. Temple, the existence of such an implied covenant was denied, while in Smith v. Marrable the tenant was relieved on the ground of a breach of such implied covenant. It is true that Hart v. Windsor professes to overrule Smith v. Marrable. PARKE, B., who delivered the opinion of the court in both of these cases, says that the decision in Smith v. Marrable rested on Edwards v. Etherington, Ry. & M. 268, and 7 D. & R. 117; Collins v. Barrow, 1 M. & Rob. 112, and Salisbury v. Marshall, 4 Car. & P. 65, and that these cases were not law. Whether this sweeping overthrow met the approval of the King's Bench, whose decisions were involved, does not appear from any case brought to notice. In Sutton v. Temple, a different account is given by the same court of Smith v. Marrable. It is there said that the case in hand was distinguished from Smith v. Marrable on the ground that in the latter case the contract was a mixed one of land and chattels (a furnished house), and that, while there is such an implied contract in regard to chattels, there is none in the case of land. The report of the case (in 11 M. & W. 5) gives no such character to Smith v. Marrable. The lease, in the latter case, is set forth, making no mention of chattels of any description, and the question came before the court upon the charge of the chief baron to the jury to the effect "that, in point of law, every house must be taken to be let upon the implied condition that there was nothing about it so noxious as to render it uninhabit able." Standing by themselves, these cases in the Court of Exchequer are of unsettled authority; but their weight will be still