§ 1246. The liability of the lessee to pay rent depends upon his being put in possession, or afforded the opportunity and power to take possession, of the demised premises, and of being secured in his quiet possession against all persons.1 But the lessor is not understood to covenant that the premises are or shall continue to be during the term in any particular state or condition, or that they are fit for the purpose for which they are hired.2 And the lessee is bound to pay rent, although he have had no beneficial use or enjoyment of them, unless the lessor have been guilty of any fraudulent concealment or misrepresentation.3
§ 1247. Where a tenant agrees expressly to pay rent for a certain time, without reservation on account of unavoidable accidents, he is bound to pay the rent for the whole term, notwithstanding the destruction of the premises by fire.4 If a lease provides "that if the premises shall be destroyed by fire, the payment of rent and the relation of landlord and tenant shall cease at the election of either party," this does not authorize the lessee to terminate the lease for a partial injury of a building by fire.1 And in a suit by the landlord to recover rent for premises destroyed by fire, evidence that the property was insured, and that the landlord had received the insurance money, or had received a sum of money remunerating him for the loss, out of a general relief-fund, is immaterial to the issue, and cannot be used as a defence by the tenant.2 But if the tenant do not agree to pay rent for a definite term, but only so long as he shall occupy the premises, and they be partly destroyed by fire, he may terminate the lease by a surrender of the residue of the premises demised. So long, however, as he remains in possession of any part, he is liable for a pro raid rent.3
1 Taylor's Landlord & Ten. § 304, and cases cited. See, also, Hawkes v. Orton, 5 Ad. & El. 367; Bird v. Higginson, 2 Ad. & El. 704; Granger v. Collins, 6 M. & W. 458; Dunn v. Di Nuovo,'3 Scott, N. R. 487; 3 M. & G. 105; Wainwright v. Ramsden, 5 M. & W. 602. So long as the relation of landlord and tenant subsists, the right of the landlord to rent is not barred by non-payment, except that an action for the amount to be recovered is limited to six years. Archbold v. Scully, 9 H. L. C. 360 (1861).
2 Surplice v. Farnsworth, 7 M. & G. 577; 8 Scott, N. R. 307; Foster v. Peyser, 9 Cush. 242; Dutton v. Gerrish, 9 Cush. 89.
3 Sutton v. Temple, 12 If. & W. 52; Hart v. Windsor, 12 M. & W. 68.
4 Izon v. Gorton, 7 Scott, 537; 5 Bing. N. C. 507; Linn v. Ross, 10 Ohio, 412; Willard v. Tillman, 19 Wend. 358; White v. Molyneux, 2 Kelly, 124. At common law a lessee is liable to pay rent for the entire premises, notwithstanding the buildings thereon are destroyed by fire during the term; Howard r. Doolittle, 3 Duer, 464; Gibson v. Perry, 29 Mo. 215; Magaw v. Lambert, 3 Penn. St. 444; Buerger v. Boyd, 25 Ark. 441; Smith v. Ankrim, 13 S. & R. 39; Fowler v. Bott, 6 Mass. 63; Loft v. Dennis, 1 El. & E. 474; Diamond v. Harris, 33 Tex. 634 (1870); though it is sometimes held otherwise if the fire occurred before the term commences, but after the execution of the lease. Wood v. Hubbell, 5 Barb. 601; 10 N. Y. 479; post, § 1256; Fowler v. Bott, 6 Mass. 63.
§ 1248. Again, a tenant is liable for rent, although he desert the premises on account of their unhealthiness, if the lessor have been guilty of no fraud or misrepresentation, and if he had the knowledge or means of informing himself of the circumstances.4 And if a tenant, during the term of his lease, abandon the premises, and the landlord undertake to let again, he will nevertheless be liable for rent up to the time that the new tenant enters and becomes liable.6
§ 1249. Where the lease contains no stipulation as to the time when the rent is to be paid, it is to be paid at the end of each period of time by which it is regulated. Thus, if it be a lease from year to year, rent is payable at the end of the year; if from quarter to quarter, it is payable at the end of each quarter.1 If no place of payment be designated in the lease, and the lessee covenant to pay rent generally, he must seek out the lessor and tender him the rent. It is no performance of the covenant for the lessee to be on the premises on the day of payment, ready and willing to pay the rent, and that the lessor is not there to receive it.2
1 Wall v. Hinds, 4 Gray, 256 (1855).
2 Magaw v. Lambert, 3 Barr, 444. Under a lease stipulating for an abatement of rent "in case the premises or any part thereof shall be destroyed or damaged by fire or other unavoidable casualty, so that the same shall thereby be rendered unfit for use or habitation," the lessee is not entitled to an abatement of rent in case of injury to the premises resulting from the neglect of the landlord to repair adjoining tenements; nor without proving that the premises were so rendered unfit for use or habitation. Welles v. Castles, 3 Gray, 323 (1855).
3 Ibid.; Voluntine v. Godfrey, 9 Vt. 186; Hill v. Woodman, 14 Me. 38; Packer v. Gibbins, 1 Q. B. 421; Howard v. Shaw, 8 M. & W. 118.
4 Westlake v. DeGraw, 25 Wend. 669; Foster v. Peyser, 9 Cush. 242; Dutton v. Gerrish, 9 Cush. 89; post, § 937.
5 Marseilles v. Kerr, 6 Whart. 501; post, § 1256.
§ 1250. Where a lease is assigned, the assignee, as we shall see, becomes the landlord, and the tenant is liable to him for rent accruing after the grant of the premises.3 But a lessee who has paid rent in advance is not liable for the same rent to a grantee of the land subject to the lease, who has no notice of the payment.4
1 Menough's Appeal, 5 Watts & Serg. 432; Garvey v. Dobyns, 8 Mo. 213; Bordman v. Osborn, 23 Pick. 295.
2 Haldane v. Johnson, 8 Exch. 689; 20 Eng. Law & Eq. 498.
3 See post, § 1273. The legal liability of a lessee to pay rent to his lessor continues until their relation of landlord and tenant ceases; and this, notwithstanding notice by the landlord to the tenant that he was to pay the rent to a third party. Fox v. Corey, 41 Me. 81 (1856).
4 Stone v. Patterson, 19 Pick. 476.