- Forfeiture of leasehold. Upon the assertion of a forfeiture by the landlord for breach of condition,70 while he is entitled to rent which has already become referred to seems unfortunate The lower court was, it is submitted, correct in using the expression surrender.

69d. Post, Sec. 431, note 96 et seq.

69e. Bradbury V. Higgenson, 162 Cal. 602, 123 Pac. 797; Board-man Realty Co. v. Carlin, 82 Conn. 413, 74 Atl. 682; Rau v. Baker, 118 111. App. 150; Patterson v. Emerich, 21 Ind App. 614, 52 N. E. 1012; Leavitt v. Maykel, 210 Mass 55, 96 N. E. 51; Merrill v. Willis. 51 Neb. 162, 70 N. W. 914; Whitcomb v. Brant, 90 N. J. L. 245, 100 Atl. 175; Underhill v. Collins, 132 N. Y. 269, 30 N. E. 576; Nat. Exch. Bank v. Hahn, 33 Okla. 516, 126 Pac. 554; Milling v. Becker, 96 Pa. 182: Goldman v.

Broyles, - Tex. Civ. - , 141 S. W. 283; Brown v. Hayes, 92 Wash. 300, 159 Pac. 89. See editorial note 13 Columbia Law Rev. 79.

69f. Post, Sec. 431, note 8.

69g. Meyer & Co. v Smith, 33 Ark. 627; Marshall v. Grosse Clothing Co., 184 111. 421, 75 Am. St. Rep. 181, 56 N. E. 807; Brown v. Cairns, 107 Iowa, 727, 77 N. W. 478; Oldewurtel v. Wiesenfeld, 97 Md. 165, 99 Am. St. Rep. 427, 54 Atl. 969; Alsup v Banks, 68 Miss. 664, L. R. A. 598, 24 Am. St. Rep. 294, 9 So. 895, 13; Conner v. Warner, 52 Okla. 630, 152 Pac. 1116; Bowen v. Clarke, 22 Ore. 566, 29 Am. St. Rep. 625, 30 Pac. 430; Auer v. Penn, 99 Pa. 370, 44 Am. Rep. 114.

70. Ante, Sec.Sec. 74-89.

Due,71 he cannot recover rent subsequently to become due, or rather, there is no rent subsequently to become due.72

Though there is no liability for rent falling due after the enforcement of a forfeiture, a provision of the instrument of lease continuing: the liability of the lessee in such case is usually regarded as effective. Thus it has been decided that the parties may validly stipulate that, upon the termination of the tenancy by re-entry or equivalent action on the part of the landlord, he may re-let to another at the risk of the tenant, the latter remaining liable for any deficiency in the amount so obtained as compared with that reserved by the original lease.73 And likewise, a provision that the lessee shall remain liable for rent in spite of the forfeiture of his term will enable the landlord to claim from the former tenant any such deficiency in the amount obtained from the new tenant.74 To obtain the benefit of such a provision, the landlord must exercise reasonable diligence to make a new lease at the best possible rent.75 In the case of a stipulation of this character, continuing the lessee's liability for the amount of the rent reserved in the lease, or for any excess of that amount over that obtainable on a new lease, the continuing liability is not, properly speaking, for rent, since the tenancy to which the rent appertained has ceased to exist. It is merely a contractual liability to the extent named.70

Or other improvements on the premises were destroyed by a flood,82 a tempest,83 a hostile army,84 or a mob.85 Occasionally the common law rule has been disapproved, as bearing with undue hardship on the tenant.86

Cording to some decisions, the liability for rent continues as before.78 But there are other decisions to the effect that in such a case the rent is apportioned, the tenant being thereafter liable only for an amount proportioned to the value of the part of the premises not taken.79 These latter decisions are, it is conceived entirely in harmony with principle, and they unquestionably arrive at an equitable result. Under such a view, the tenant is, in the condemnation proceeding, awarded merely the amount, if any, by which the value of his leasehold interest, that is, the excess in the rental value over the rent reserved, is diminished owing to the taking. Under the opposite view, the tenant is awarded the diminution in the rental value caused by the taking, on the theory that he will ultimately pay it over to the landlord in the form of rent, which, as a matter of fact, he may or may not do.

The case of the taking of, not the ownership or "fee," but merely an easement in the leased premises, the question of the continuing liability for rent may be most satisfactorily solved upon the theory that the dispossession of the tenant by the public agency, for the purpose of enjoying the easement, after the latter's acquisition thereof, constitutes an eviction under paramount title.80 Such dispossession is not, indeed, under a paramount title if by paramount title we mean only a legal title outstanding at the time of the lease, but there is no reason for so confining its meaning. An eviction by one claiming by force of the foreclosure of a mortgage prior to the lease is no doubt an eviction under paramount title, regardless of 'whether the mortgagee had the legal title, and so an eviction by one claiming by force of the assertion of the paramount power of the state may well be regarded as an eviction under paramount title, or at least so analogous thereto as to be governed by the same principles.

71. Hartshorne v. Watson, 4 Bing. N. Cas. 178; Mackubin v. Whetcroft, 4 Har. & Mch. (Md.) 135; Hinsdale v. White, 6 Hill. (N. Y.) 507; Mccready v. Linden-born, 172 N. Y. 400, 65 N. E. 208; Rubicum v. Williams, 1 Ashm. (Pa.) 235; Galbraith v. Wood, 124 Minn. 210, 144 N .W. 945; Youngs Mining Co. v. Courtney, 219 Fed. 868, 135 C. C. A. 538.

72. Oldershaw v. Holt, 12 Adol. & E. 590; Watson v. Merrill, 69 C. C. A. 185, 136 Fed. 359; Coburn v. Goodall, 72 Cal. 498, 1 Am. St. Rep. 75, 14 Pac. 190; Grommes v. St. Paul Trust Co., 147 111. 634, 37 Am. St. Rep. 248, 35 N. E. 820; Hall v. Joseph Middleby, Jr., 197 Mass. 485, 83 N. E. 1114; Wreford v. Kenrick,

107 Mich. 389, 65 N. W. 234; Sharon v. American Fidelity Co., 172 Mo. App. 309, 157 S. W. 972; Hackett v. Richards, 13 N. Y. 138.

73. Way v. Reed, 6 Allen (Mass.) 364; Woodbury v. Spar-rell Print, 187 Mass. 426, 73 N. E. 547; Hall v. Gould, 13 N. Y. 138; Baldwin v. Thibadeau, 28 Abb. N. Cases 14, 17 N. Y. Supp. 532; Yuan Suey v. Fleshman, 65 Ore. 606. 133 Pac. 803.