Cutlar v. Potts, 3 N.C. 26, 2 Hayw. 26 (1797)

Nov. 1797 · North Carolina Superior Court

3 N.C. 26, 2 Hayw. 26

Cutlar vs. Potts and another.

"pOTTS, as agent to the defendant had rented a bouse in WiU mi tig ton to the complainant, who enjoyed it about nine months and the house was burnt down. Potts sued upon the note he had taken at the time of making the contract, and recovered the whole rent; and Cutlar filed this bill for an injunction, and to be relieved as to the rent for the one fourth of the 3'ear, being the time elapsed after the premises were burnt, and during which he had no enjoyment: The answer stated that the bousus were let at a great undervalue, and the note taken to sc-cure the lessor at ail events of the rent therein contained and to place it beyond the power ot accident.

Taylor for the defendant,

-lithe premises be burnt down before the year expires, the rent is still as much payable both hi law and equity as if the tenant had the uninterrupted enjoyment of them, and cited f term 3.12 710, 2Str. 753, 2 L„ Ray. 1477, 3 Bum 1633, AIL 27, 1 ch. C. 18?, Dyer 33,

Sampson, e contra.

=The authorities cited go to establish the pot-j.doo, that where a man covenants under seal for payment of the rent, and the premises are burnt down, that he shall not discharge himself from his covenant by pleading that matter, for he has bound hiinself by covenant absolutely and unconditionally to pav the rent; but h.y the covenant out of the ease, and those authorities do.nofc say he shall pay rent for premises he has not enjoyed .■ and the law is other-wise, 4 J?.a« Ah, 370,1 Fsoli. Ab. 236, no :r; ? •- ment can be admitted against a man's own deed to do.it away, or explain what appears to be an absolute agreement into a conditional one ; that is the ground upon which these authorities proceeded, 33 is manifest from the reasoning, 3 Bur. 16?*, and as there is no covenant under seal in the present case to estop the tenant from saying the rent ought t® be apportioned ; anil as the note has not been negotiated, he contended it was consistent with the relee of law and equity too, that it should be apportioned.

Hayxvood, Judge,

was strongly inclined that the rent should ba apportioned,.but look time till this day to look into the cases, and now at this dav he mentioned the cases of Brown and Quilter, Amb. 619, and Stuart & Wright, 1 term, 708, and said, as there appeared to be so much more equity in those eases than in the others cited on the other side, he was still inclined to follow them, but as-it v»s stated in the answer that the rent contracted for was not above half the real value c" the premises, that cit> cumstance should have some weight, and he would therefore continue the injunction for the present, and put the party to re» ply and take depositions that the whole matter .might once morp come fully before the court at another tsi m«

Adjoi:rnaiur>