Sec 318

Whether a covenant of a tenant is vacated by his ejection by a public enemy, will be hereafter considered.3 We have in this section to consider, who, in case of loss by either fire or hurricane, is to bear the burden? Land is leased with buildings on it on a covenant to pay rent. The buildings are burned, and the tenant loses the use. There is a hardship either way: either the landlord or the tenant must bear the burden. Now on a lease of land, with an express covenant to pay rent, with no provision as to the party on whom the repairs are to fall, there can be little question that the tenant takes the risk of fire. In any view, he enjoys the land; and if he has not insured, and has not taken such precautions as preclude fire, it is his misfortune, but the loss must fall on him.4 "When the law creates a duty," so is the rule stated on high authority, "and the party is disabled to perform it without any default in him, and he has no remedy over, the law will excuse it, as in waste, if a house be destroyed by tempest or by enemies, the lessee is excused; so in escape, if a prison be destroyed by tempest or enemies, the jailer is excused; but when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. And, therefore, if a lessee covenant to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he is bound to repair it."1 Hence, when there is an express covenant to keep in repair,destruction of premises by casus is no defence to a suit on the covenant.2 Even a covenant to rebuild a bridge is not excused by destruction caused by extraordinary storms.3 It is no defence, also, to an action for rent that the premises had been destroyed by fire, and that the landlord had recovered the insurance money.4 On the other hand, where simply a building is let on a short lease, the lessee having no right over the soil, and being subjected to no duty to repair, he is not bound for rent after the building is destroyed by a fire for which he is in no way responsible.5 The reason is, that in the first contract the implication is that it is the land which the lessee takes, and of which he must bear the burdens as well as the benefits, while in the second, he takes only the building, and when that is gone, possesses nothing which is of any value to him. Special minor covenants, also, dependent on the continuance of the building may be defeated on the destruction of the building.6 Hence, a lessee of coal mines, covenanting to work them during a stated period, is relieved from his covenant by the exhaustion of the mines before the expiration of the period assigned.1 - It has also been held in Indiana, that where, after a lease of a saw-mill and one room of an adjoining factory, both factory and saw-mill were destroyed by fire, the tenant was relieved from the rent of the room, but not from the rent of the saw-mill.2 And in Kansas, where the existence of the common law rule as above stated is questioned, it is held that where real and personal property are leased in a gross amount in a single contract, and where both are destroyed by casus, the tenant is entitled to an apportionment of the rent.3 - Unless the covenant to repair is express, the tenant is not bound to repair in case of destruction by casus; and no such duty, it has been held, is imposed on the tenant by a mere covenant to restore to the lessor the property in the same condition as when taken.4

Covenant of tenant not defeated by casus.

1 Simmons v. Swift, 5 B. & C. 862, adopted in Benj. on Sales, 3d Am. ed. sec 315, citing Arnold v. Delano, 4 Cush. 33; Willis v. Willis, 6 Dana, 48; Hall v. Richardson, 16 Md. 396.

2 See to same effect, Park, J., in Dixon v. Yates, 5 B. & Ad. 313, and numerous cases cited in Benj. 3d Am. ed. sec 315. The risk attends the title. Rugg v. Minott, 11 East, 210; Thayer v. Lapham, 13 Allen, 26; Joyce v. Adams, 4 Seld. 296; Terry v. Wheeler, 25 N. Y. 520; Whitcomb v. Whitney, 24 Mich. 480; Willis v. Willis, 6 Dana, 49.

3 See infra, sec 319, and see Paradine v. Jane, Aleyn, 26; Harmony v. Bingham, 12 N. Y. 99; Bayly v. Lawrence, 1 Bay, 499.

4 Smith's Land. and Tenant, 202; Loft v. Dennis, 1 E. & E. 478; Leeds v. Cheetham, 1 Sim. 146; Fowler v. Bott, 6 Mass. 63; Hallett v. Wylie, 3 Johns. 44; Gates v. Green, 4 Paige, 355; Harmony v. Bingham, 12 N. Y. 99; Calloway v. Hamby, 65 N. C. 631; Dowdy v. McLellan, 52 Ga. 408; Ely v. Ely, 80 111. 532; and other cases cited, Wald's Pollock, 358; Bisph. Eq. 175.

1 Williams, Serg., 2 Saund. 69; adopted in Hoy v. Holt, 91 Perm. St. 91.

2 Bullock v. Dommitt, 6 T. R. 650; Leeds v. Cheetham, 1 Sim. 146; Digby v. Atkinson, 4 Camp. 475; Darrell v. Tibbetts, L. R. 5 Q. B. D. 560; Phillips v. Stevens, 16 Mass. 238; Hoy v. Holt, 91 Penn. St. 88; Moyer v. Mitchell, 53 Md. 171; Linn v. Rose, 10 Ohio, 412; Ely v. Ely, 80 111. 532. In Whitaker v. Hawley, 25 Kan. 674, it is doubted whether the common law on this point is in force in Kansas.

3 Brecknock Co. v. Pritehard, 6 T. R. 750.

4 Magaw v. Lambert, 3 Barr, 144;.

Fisher v. Milliken, 8 Barr, 121; Dyer v. Wightman, 66 Penn. St. 427; Buss-man v. Ganster, 72 Penn. St. 285.

5 Stockwell v. Hunter, 11 Mete. 448 (a lease of a cellar); Shawmut Bank v. Boston, 118 Mass. 125; Graves v. Berdan, 26 N. Y. 498 (a lease of upper rooms); Karr v. Exchange Co., 3 Edw. 315 (a lease of rooms in a merchant's exchange); Winton v. Cornish, 5 Ohio, 477 (a lease of cellar and storeroom); Bayly v. Lawrence, 1 Bay, 499; McMillan v. Solomon, 42 Ala. 356.

6 Pollock, op. cit. 359.

1 Walker v. Tucker, 70 111. 527; see Clifford v. Watts, L. R. 5 C. P. 577. That where a building is let for a special purpose, destruction may be a defence, see supra, sec 300. As to nonexistence of thing contracted for, see generally, supra, sec 298.

2 Womack v. McQuarry, 28 Ind. 103. It was said by the court: "This exception applies only to cases where the demise is of part of an entire building, as a cellar or upper room; and it is founded upon the idea that in such cases it is not the intention of the lease to grant any interest in the land, save for the single purpose of the enjoyment of the apartment devised, and when that enjoyment becomes impossible by the destruction of the building, there remains nothing upon which the demise can operate." See article in 24 Alb. L. J. 364.

3 Whitaker v. Hawley, 25 Kan. 674.

4 Warner v. Hutchins, 5 Barb. 666; Maggort v. Hansbarger, 8 Leigh, 536; Graham v. Swearinger, 9 Yerg. 276; Levey v. Dyess, 51 Miss. 501; Howeth v. Anderson, 25 Fox, 557; Miller v.

Morris, 5 Tex. L. J. 113. In Miller v. Morris, ut supra, the court said: "In Nave v. Berry, 22 Ala. 390, the distinction was recognized and adopted between an obligation • to repair and deliver up,' and one ' to deliver up.' That whilst the former binds the obligor to rebuild in case of loss by fire during the term, Phillips?;. Stevens, 16 Mass. 238, the latter is construed to mean simply an obligation against holding over, and if the buildings are burned or destroyed, without the fault of the lessee, he is not bound to rebuild or pay for the improvements so destroyed. In Maggort v. Hansbarger, 8 Leigh, 536, the covenant was to return the said property with all its appurtenances.' The property was destroyed by fire. Held, that this was not a covenant to rebuild or to deliver the demised premises in good order, but simply a covenant or agreement to return the property with its appurtenances. A distinction was drawn between that case and Ross v. Overton, 3 Call, 309; Phillips v. Stevens, 16 Mass. 238; Bullock v. Dommit, 6 T. R. 650;