This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
74. Grommes v. St. Paul Trust Co., 147 111. 634, 37 Am. St. Rep. 248, 35 N. E. 820. But in Pusey v. Sipps, 56 Pa. Super. Ct. 121, such a provision appears to be regarded as nugatory.
75. International Trust Co. v. Weeks, 203 U. S. 364, 51 L. Ed.
As to whether, when rent is payable in advance, the landlord is entitled to the full installment of rent in spite of his re entry during the rent period, the cases are not in accord. On principle, he having become entitled to the installment on the rent day, his right thereto would properly seem to be unaffected by his subsequent enforcement of a forfeiture.76a
- Taking land for public use. Upon the taking of the whole of the leased land for public use under the power of eminent domain, the ownership of the land thereby passing to the state or other public agency, the liability for rent, it is usually agreed, comes to an end.77 Upon the taking of a part of the premises, ac224; Edmands v. Rust & Richardson Drug Co., 191 Mass. 123, 77 N. E. 713; Woodbury v. Sparrell Print, 198 Mass. 1, 84 N. E. 441.
76. See Hall v. Gould, 13 N. Y. 127; Grommes v. St. Paul Trust Co., 147 111. 634, 37 Am. St. Rep. 248, 35 N. E. 820; Woodbury v. Sparrell Print, 187 Mass. 426, 73 N. E. 547; Stott Realty Co. v. United Amusement Co., 195 Mich. 684, 162 N. W. 283.
76a. That he is entitled to the full installment, see Ellis v. Rowbotham (1900), 1 Q. B. 740; Hepp Wall Paper Co. v. Deahl, 53 Colo. 274, 125 Pac. 491; Gal-braith v. Wood, 124 Minn. 210, 144 N. W. 945; Healy v. Mcmanus, 23 How. Pr. (N. Y.); Cunningham v. Phillips, 1 E. D. Smith (N. Y.) 416. See editorial note. 14 Columbia Law Rev. 354. Contra, Sutton v. Goodman, 194 Mass. 389, 80 N. E. 608; Hall v. Middeby, 197 Mass. 485, 83 N. E. 1114; Wreford v. Kenrick, 107 Mich. 389, 65 N. W. 234.
77. Corrigan v. Chicago, 144 111. 537, 21 L. R. A. 212, 33, N. E. 746; O'brien v. Ball, 119 Mass. 28, 20 Am. Rep. 299; Lodge v. Martin, 31 App. Div. 13, 52 N. Y. Supp. 385; Barclay v. Pickler, 38 Mo. 143; Dyer v. Wightman, 66 Pa. 425; Mccardell v. Miller, 22 R. I. 96, 46 Atl. 184. Contra, Foote v. City of Cincinnati, 11 Ohio, 408, 38 Am. Dec. 737; Foltz v. Huntley, 7 Wend. (N. Y.) 210.
It would seem that when the ownership of either a part or the whole of the leased premises, the "fee" as it is usually referred to, is taken under the power of eminent domain, the liability for rent is proportionally reduced or extinguished, for the reason that the leasehold interest in the land taken has come to an end by reason of its merger in the reversion. When the reversion and the leasehold are voluntarily transferred to a single person by their respective owners, a merger results, and the same thing occurs when they are so transferred involuntarily, as by condemnation, the fact that the transferee is the state or some other public agency being immaterial. On the other hand, in
78. Stubbings v. Village of Evanston, 136 111. 37, 11 L. R. A. 839, 29 Am. St. Rep. 300, 26 N. E. 577; Parks v. City of Boston, 15 Pick. (Mass.) 198; Olson Land Co. v. Alki Park Co., 63 Wash. 521, Ann. Cas. 1912D, 365, 115 Pac. 1083.
79. Biddle v. Hussman, 23 Mo.
597; Board of Levee Commissioners v. Johnson, 66 Miss. 248, 6 So.' 199; Cuthbert v. Kuhn, 3 Whart. (Pa.) 357, 31 Am. Dec. 513; Uhler v. Cowen, 192 Pa. 443, 44 Atl. 42 (semble). See Dyer v. Wightman, 66 Pa. 427; City of Baltimore v. Latrobe, 101 Md. 621, 61 Atl. 203.
- Destruction of buildings. The well established rule of the common law is that the liability of the tenant for the rent called for by the lease is in no way affected by the fact that buildings or improvements on the land leased are wholly or partially destroyed by some unforeseen casualty, however much this may decrease the utility of the premises to the tenant. This rule finds its most frequent application in the case of a total or partial destruction by fire of buildings on the leased premises,81 but it has also been applied when buildings
80. See Emmes v. Feeley, 132 Mass. 346; Devine v. Lord, 175 Mass. 384, 78 Am. St. Rep. 502, 56 N. E. 570; Rhode Island Hospital Trust Co. v. Hayden, 20 R. I. 544, 42 L. R. A. 107, 40 Atl. 421.
81. Baker v. Holtzapffel, 4 Taunt. 45; Cowell v. Lumley, 39 Cal. 151, 2 Am. Rep. 430; Buck-born Plaster Co. v. Consolidated Plaster Co., 47 Colo. 516, 108 Pac. 27; Hunnislon, Keeling & Co. v. Wheeler, 175 111. 514, 67 Am. St.
In case of the destruction, even though total, of the buildings on the leased land, there is not a total destruction of the subject matter of the lease, and there remains something out of which, in theory, the rent can issue, however small may be the value of the land as compared with the buildings destroyed. In the case, on the other hand, of the lease of a building alone, without the land,87 or of merely certain rooms in or parts of a building,88 if the building, or the part thereof which is the subject of the lease, is destroyed, it 'has
Rep. 232, 51 N. E. 893; Fowler v. Mott, 6 Mass. 63; Roberts v. Lynn Ice Co., 187 Mass. 402, 73 N. E. 523; Bowen v. Clemens, 161 Mich. 493, 137 Am. St. Rep. 521, 126 N. W. 639: Lincoln Trust Co. v. Nathan, 175 Mo. 32, 74 S. W. 1007; Fowler v. Payne, 49 Miss. "2; Felix v. Griffiths, 56 Ohio St. 39, 45 N. E. 1092; Harrington v. Watson, 11 Ore. 143, 50 Am. Rep. 465, 3 Pac. 173; Nashville, C. & St. L. R. Co. v. Heikens, 112 Tenn. 378, 65 L. R. A. 298, 79 S. W. 1038; Arbenz v. Exley, Watkina & Co., 52 W. Va. 476, 61 L. R. A. 957, 44 S. E. 149.
82. Smith v. Ankrim, 13 Serg. & R. (Pa.) 39.
83. Peterson v. Edmonson, 5 Har. (Del.) 378.
84. Paradine v. Jane, Aleyn, 26; Robinson v. L'engle, 13 Fla. 482; Pollard v. Shaffer, 1 Dall. (Pa.) 210.
85. Wagner v. White, 4 Har. & J. (Md.) 564.
86. See Whitaker v. Hawley,
Been usually held in this country that nothing remains from which the rent can issue, and that consequently the liability therefor immediately ceases. In England the same rule applies when the lease is of an apartment in a building as when it is of the land itself,89 and the explanation would seem to be that there the lease of an apartment is construed as including an interest in the soil, from which the rent may be regarded as issuing even after the destruction of the apartment.