These acts of voluntary waste call for relief. The defendant should be required, within such time as the chancellor may deem reasonable, to redeem or repurchase the forfeited lands, and upon his failure so to do a commissioner should be appointed to sequester the rents, or so much of them as may be necessary for this purpose. For the purpose of redeeming the lands and of hereafter keeping down the taxes, the defendant will be permitted to fell timber in such quantities and at such places as do not seriously impair the value of the inheritance. As tenant for life he has the right to do this, even for purposes of profit. Sargeant v. Towne, 10 Mass. 303. Conner v. Shepherd, 15 Mass. 164. If it be true that the State has no title to the forfeited lands, by reason of an invalid sale or levy of taxes, an easy remedy for the defendant is found in § 569 of the Code of 1880, which provides a method of striking from the auditor's books lands improperly claimed by the state. Lastly, the defendant should be enjoined from any further acts of voluntary waste to the detriment of the inheritance. When the case is returned to the lower court, the bill should be amended by making the trustees, or the survivor of them, parties. They are clothed with the legal title to the estate, and while the contingent remaindermen need not wait on them for an assertion of their rights, the holders of the legal title should, where it is possible, be before the court. Kerr on Injunctions, 256, 267. So, also, should J. N. Cannon and his children, if he has any, be made parties. They stand in the same attitude as the complainants, and equally with them are contingent remaindermen. It is only where the first tenant in tail in esse has a vested estate of inheritance that he is held to so far represent all subsequent tenants in tail as to dispense with the necessity of joining them. The doctrine does not apply to a contingent remainderman with no vested interest. Story's Eq. Pl.,
§§ 145- 147.
Reversed and remanded.
94 United States, 53. - 1876.
Suit by Bostwick, as trustee for Lovett, to recover the rent of, and for damages to, certain real estate in the District of Columbia. The United States appeals from a decision in favor of plaintiff.
Mr. Chief Justice Waite delivered the opinion of the court: * * * The contract is one by which Mr. Lovett agreed to let and the United States to hire, the premises described for the term of one year, with the privilege of three, at a rent of $500 a month, and without restriction as to the use to which the property might be put. The United States agree to nothing in express terms except to pay rent and hold for one year.
But in every lease there is, unless excluded by the operation of some express covenant or agreement, an implied obligation on the part of the lessee to so use the property as not unnecessarily to injure it, or, as it is stated by Mr. Comyn, " to treat the premises demised in such manner that no injury be done to the inheritance; but that the estate may revert to the lessor undeteriorated by the wilful or negligent conduct of the lessee." Com. Land & Ten. 188. This implied obligation is part of the contract itself. as much so as if incorporated into it by express language. It results from the relation of landlord and tenant between the parties which the contract creates. Holford v. Dunnett, 7 M. & W, 352. It is not a covenant to repair generally, but to so use the property as to avoid the necessity for repairs, as far as possible. Horse/all v. Mather, 7 Holt, 9; Brown v. Crump, 1 Marsh. 569.
There are in this contract no stipulations to take the place of or in any manner restrict this implied obligation on the part of the United States growing out of their relation to the petitioner as his lessees. They had the free and unrestricted right to use the property for any and all purposes, but were bound to so conduct them selves in such use as not to cause unnecessary injury. Whatever damages would necessarily result from a use for the same purpose by a good tenant must fall upon the lessor. All that the relation of landlord and tenant implies in this particular is, that the tenant, while using the property, will exercise reasonable care to prevent damage to the inheritance. His obligation rests upon the maxim sic utere tuo ut alienum non laedas. If he fails in this, he violates his contract, and must respond accordingly.
The United States, when they contract with their citizens, are controlled by the same laws that govern the citizen in that behalf. All obligations which would be implied against citizens under the same circumstances will be implied against them. No lease in form was ever executed in this case; but the contract, followed by the delivery of possession and occupation under it, is equivalent for the purposes of this action to a lease duly executed, containing all the stipulations agreed upon.
Such being the agreement of the parties, it remains only to consider the questions arising under it, as they appear in the record. * * *
As to the destruction of a part of the buildings by fire. There was, as has been seen, no express agreement to repair in the lease. The implied obligation is not to repair generally, but to SO use the property as to make repairs unnecessary, as far as possible. It is in effect a covenant against voluntary waste, and nothing more.
It has never been so construed as to make a tenant answerable for accidental damages, or to bind him to rebuild, if the buildings are burned down or otherwise destroyed by accident. In this case it has not been found, neither is it claimed in the petition, that these premises were burned through the neglect of the United States. No judgment can, therefore, be rendered against the United States on this account. * * *
It appears in the finding that during the occupancy under the lease ornamental trees were destroyed; fences and walls torn down, and the materials used for sidewalks and the erection of other buildings, or carried away, and that stone was quarried and gravel dug from a stone-quarry and gravel-pit on the premises, and taken away. This was voluntary waste, and within prohibition of the implied agreement in the lease. For this the Court of Claims can award compensation in this action. The amount of this damage has not been found. * * *