Executors of Ragland v. Parish Cross , 2 N.C. 121 ( 1815 )

Taylor, C. J.

As this case was commenced in a court of law, and has not been removed to another jurisdiction, we must take the principles of law for our guide. On such alone we profess to decide it, as it would be novel and irregular to apply equitable considerations to a case not properly constituted in the proper forum. There is no principle or authority which warrants the apportionment of the sum secured by the bond in this case. The distinction is well settled between those covenants implied by law and the obligation created by the act of the party. In the first case, if the party, without default in him, is disabled from performing it, and has no remedy, the law will excuse him. A tenant is liable to waste, but if the house be destroyed by enemies or tempest, he is excused. But if he covenant to repair the house, he is bound by his contract although it should be destroyed by lightning or by enemies, because he might by his contract have stipulated against such liability. In Dyer 33, a lessor covenanted under a penalty to sustain and repair the banks of a river, which were afterwards destroyed by a sudden inundation. It was held that although he was excused from the penalty, he was bound to repair in convenient time. In Allen 20 it was decided that a lessor was liable by his covenant to pay the rent, although he had been driven from the premises by public enemies. These ancient authorities, to which others might be added, have been affirmed by an uniform current of modern decisions. In 2 Str. 763, the tenant was held liable on a covenant to pay the rent, though he had no enjoyment of premises by the default of the lessor, who had covenanted to repair, which he failed to do after the house was destroyed by fire. In 1 Term Rep. 710, Mr. Justice Buller says, “ a lessee is obliged to pay rent, even though the premises should be burned down.” There is no principle of the law better established than that an apportionment of the debt cannot be made in a case of this kind. There must be judgment for the plaintiff.