§ 1265. The estate of a tenant at will may be determined by the entry of the lessor5 upon the premises for that purpose, and possession will thus be restored to him, subject to-the right of the tenant to remove his property within reasonable time.1 So, also, where a lease contains a provision of forfeiture, in case of non-payment of the rent, or commission of waste, or non-compliance with any other condition, without notice or process of law, the mere entry of the lessor will determine the lease.2 But in all cases where a right of entry is reserved, the entry must be made animo clamandi, and for the purpose of taking possession, in order to work a forfeiture of the lease.3 And the mere failure of the conditions of a lease does not work a forfeiture of itself, without entry, unless it be so expressly provided.4 Therefore, if a right of entry be given in case of underletting by the tenant, the assignment of the lease does not work a forfeiture, unless the entry is made.5 Whether the facts constitute an entry and possession adverse to the lessor's rights, so as to work a forfeiture, is a question for a jury to determine under the circumstances of the case.6 A forfeiture of a lease is waived by the lessor, if, knowing of such forfeiture, he receives or sues for rent for a period of time subsequent to the forfeiture.1 But not by the receipt of rent for a period prior to the forfeiture, though received afterwards, and with knowledge thereof.2 Where there is no provision in respect of notice or process of law, and the right of property is claimed on the ground of forfeiture for non-payment of the rent, there must be proof of a demand of the precise sum due, at a convenient time before sunset, on the day when it is due, upon the land,3 and in the most notorious place on it, even although there be no person thereon to pay.4 And, although the lessor may have a right to determine a lease by entry, yet he cannot use violence in ejecting the tenant, or disallow him a reasonable time to remove, without rendering himself liable to an action of trespass.5 For, so long as the relation of landlord and tenant exists, possession of the leased premises cannot be obtained by force against the will of the tenant, but the landlord must resort to his legal remedy for that purpose.6
1 Feret v. Hill, 15 C. B. 207; 26 Eng. Law & Eq. 261. See Canham v. Barry, 15 C. B. 597; 29 Eng. Law & Eq. 290; Milliken v. Thorndike, 103 Mass. 382, 386 (1869).
2 Read v. Erington, Cro. Eliz. 321; Fenn v. Smart, 12 East, 444; Good-right v. Davids, 2 Cowp. 803; Bacon, Abr. Leases, T. 2.
3 DeLancey v. Ganong, 5 Seld. 9. See, also, Beach v. Nixon, Id. 35. A lease contained the following condition: "Provided, however, that if the lessee shall neglect to pay the rent as aforesaid, then this lease shall thereupon, by virtue of this express stipulation, expire and terminate; and the lessor may, at any time thereafter, re-enter said premises and the same possess as of his former estate." Held, that the lease, by the nonpayment of rent, did not become void, but only voidable at the option of the lessor; that to take advantage of this right to avoid the lease, it was necessary for the lessor, 1st, To make demand of the rent on the day it fell due, on the premises, and at a convenient hour before sunset; 2d, Upon neglect to pay the rent to make a re-entry on the premises, or in some other positive manner assert the forfeiture of the lease. Bowman v. Foot, 29 Conn. 331 (1860). See, also, Read v. Tuttle, 35 Conn. 25 (1868).
4 4 Kent, Comm. lect. 56, p. 106; New York Rev. Stat. vol. i. p. 739, § 143, 145; Mass. Rev. Stat. ch. 59, § 6.
5 But a lessor's right to re-enter leased premises for a forfeiture of the lease is not assignable. Trask v. Wheeler, 7 Allen, 109 (1863).
1 Moore v. Boyd, 24 Me. 242; Curl v. Lowell, 19 Pick. 25; Dorrell v. Johnson, 17 Pick. 263. A lessor cannot enter upon the premises of a tenant at will, whose estate has not been legally determined, and remove a pump thereon standing. Dickinson v. Goodspeed, 8 Cush. 119. A lessor who has determined the tenancy by an entry for breach of covenants in the lease has no right to the possession of the lease as against tho tenant. Elworthy v. Sandford, 3 H. & C. 330 (1864). A fortiori he has not after the expiration of the term by its own limitation. Hall v. Ball, 3 M. & G. 242.
2 Robie v. Smith, 21 Me. 114; Den v. Craig, 3 Green, 191.
3 An act of the lessor, amounting to a mere trespass, and not interfering with the substantial enjoyment of the demised premises by the lessee, is not equivalent to an eviction. It is not necessary that there should be an act of expulsion by physical force to constitute an eviction; but there must be an actual or constructive exclusion of the tenant from the possession or beneficial use and enjoyment of the whole or some portion of the property demised. Lounsbery v. Snyder, 31 N. Y. 514 (1865).
4 Holly v. Brown, 14 Conn. 255; Fifty Associates v. Howland, 11 Met. 99; Garrett v. Scouten, 3 Denio, 334.
5 Spear v. Fuller, 8 N. H. 174. 6 Holly v. Brown, 14 Conn. 255.
1 Dendy v. Nicholl, 4 C. B. (n. s.) 376 (1858); McKildoe v. Darra-cott, 13 Gratt. 278; Kieler v. Davis, 5 Duer, 507.
2 Hunter v. Osterhoudt, 11 Barb. 33; Stuyvesant v. Davis, 9 Paige, 427.
3 See Chapman v. Harney, 100 Mass. 353 (1868).
4 Connor v. Bradley, 1 How. 211; Sperry v. Sperry, 8 N. H. 477. See McQuesten v. Morgan, 34 N. H. 400. The demand for rent, in ordei to work a forfeiture, if it be not paid, must be made at a convenient time before sunset, on the last day. Half past ten in the morning is too early. Acocks v. Phillips, 5 H. & N. 183. And see Doe v. Paul, 3 C. & P. 613; Jones v. Reed, 15 N. H. 68; Gaskill v. Trainer, 3 Cal. 334; McQuesten v. Morgan, 34 N. H. 400; Connor v. Bradley, 1 How. 217; Eichart v. Bargas, 12 B. Mon. 464; Chapman v. Wright, 20 I11. 120. And a distress for rent is illegal if made before sunrise or after sunset. Tuttou v. Darke, 5 H. & N. 647 (1860).
5 Moore v. Boyd, 24 Me. 242; Curl v. Lowell, 19 Pick. 25; Dorrell v. Johnson, 17 Pick. 263; post, §1278. See Commonwealth v. Haley, 4 Allen, 318 (1862). If the owner of a tenement has gained peaceable possession of a portion thereof, upon the termination of his tenant's estate therein, he may use as much force as may be necessary to overcome the tenant's resistance to his taking possession of the residue. Mugford v. Richardson, 6 Allen, 76 (1863).
6 Larkin v. Avery, 23 Conn. 304 (1854). A landlord is liable in trespass for a forcible entry on the premises before the estate is lawfully terminated. Cunningham v. Horton, 57 Me. 420 (1869).
§ 1266. By the common law, the court has authority to stay proceedings in a writ of entry brought to enforce a forfeiture for non-payment of rent, where such non-payment resulted from mistake or accident, and under equitable circumstances, provided the tenant bring into court the amount of the rent, interest, and costs, and tender them to the defendant.1 Thus, where the tenant incurred the forfeiture of his term by tendering a quarter's rent, through mistake, a day or two before it was due, and omitted to pay it on the quarter-day, by accident, the proceedings were stayed, upon the tender by the lessee of the full amount of the rent in arrear, with interest and costs.2