Doe ex dem. Richburg v. Bartley, 44 N.C. 418, 1 Busb. 418 (1853)

Aug. 1853 · Supreme Court of North Carolina

44 N.C. 418, 1 Busb. 418

DOE ex dem. ELIZABETH C. RICHBURG vs. JOHN H. BARTLEY.

Where forfeiture of a lease is incurred by nonpayment of rent, if the lessor receives from the lessee rent subsequently accruing, the forfeiture is thereby waived.

Ejectment, tried before Baily, Judge, at Madison, at Pall Term, 1852. The plaintiff offered in evidence a lease for the premises in question, executed bjr her to the defendant, demising the same for the term of “ live years, to wit, commencing with 1st day of January, 1850, and ending on 1st day of January, 1855,” and in which it was covenanted on the part of the defendant, to pay the plaintiff “ one hundred dollars per year, to be paid at the end of eacli year,” and after stipulating to make repairs and certain improvements on the premises, follows tins clause : “ It is further understood, that if the said Bartley shall fail to comply with the terms herein specified, or shall fail to make the annual payment when due, he shall be liable to an immediate removal.”

The declaration was issued in October, 1851, and served on the defendant November 4th following.

It was admitted that the defendant was in possession of the said premises at the time the declaration was served ; and further admitted that he did not pay the rent at the end of the year 1850, as he had stipulated to do ; but it was in evidence that he paid to plaintiff the rent for 1850 in full, and for 1851, on the 28th October, 1851 — having during the latter year, made partial payment thereof. The plaintiff also offered evidence tending to ■show that the defendant had not performed his covenants in respect to repairs and improvements, and counter evidence was offered by the defendant on this point, (but it is deemed unnecessary to state the facts here, as the plaintiff’s counsel has not in this Court insisted on the same as creating a forfeiture of the defendant’s estate.) As to the first point, the defendant’s counsel in the Court below insisted that the plaintiff had not the legal title at the date of the demise in the declaration, that no entry was made by her, and no notice given to the defendant, and if the defendant was liable at ail, it was only for a breach of covenant; and further, that the payment of the rent in 1851, for the years 1850 ancl 1851, was a waiver of the trespass, and the plaintiff could not therefore maintain her action. By consent of parties, this question was reserved by his Honor, and there was a verdict against the defendant; and his Honor afterwards, on consideration of the point reserved, beingj of opinion against the plaintiff, by agreement of the parties, set aside the verdict and entered a judgment of nonsuit, from which the plaintiff appealed to the Supreme Court.

J. W. Woodfin, for the plaintiff.

Gaither, for the defendant.

Battle, J.

Whether it was necessary for the lessor of the plaintiff to enter upon the demised premises, or give notice to the defendant before bringing her action of ejectment, it is unnecessary for us to decide ; for it is clear that the forfeiture of the lease by the nonpayment of the rent due for the year 1850, was waived by the subsequent acceptance by the lessor from the lessee, of that due for the year following. Arch. Land, and Ten. 97-J.00, (43 Law Lib. 108-111.) The declaration was issued on the 7th day of October, 1851, and served on the defendant the 4th of November following ; while, it is stated in the bill of exceptions,' that the rent due for the year 1850, though not paid at the end of the year, was afterwards paid in full; and further, that the rent of 1851 was paid on the 28th October in that year. Now we do not attribute any effect to the reception by the lessor of the rent of 1850, because, after it became due, she had a light to receive it., whether the defendant was to continue her tenant or not; but certainly, after receiving, during the. year 1851, the rent or any part of it, which was to become due at the end of that year, she recognized the defendant as her tenant for that year; and thereby waived the forfeiture incurred by the nonpayment of the rent of the preceding year.

The counsel of the plaintiff’s lessor has not insisted in this Court that at the time when the action was commenced, there was any breach of covenant, other than the nonpayment of rent, for which she had a right to insist upon a forfeiture. It does not appear from the written contract between the parties, that any particular time, prior to the termination of the lease, was fixed upon for the lessee to complete the repairs ; and we cannot say that at the time when the suit was commenced, the lessor had a. right to consider the lease as atan end, and to treat the defendant as a trespasser. The judgment must’be affirmed.

PER Curiam. Judgment affirmed.