House v. Lewis ( 1922 )

Hostetler, District Judge.

This was an action in forcible entry and detainer. The matter was tried and submitted to a jury and a verdict returned in favor of defendant. From a judgment entered thereon, the plaintiff appeals.

The defendant ivas in possession of certain Indian lands as tenant under a government lease. By the terms of this lease defendant was required to pay as rent $80 on the 1st of March and $80 on the 1st of November of each year. The written lease specified no place for the payment of rents, merely reciting that rents should be payable to the superintendent of the Omaha agency. Such agency was acting as'trustee for the Indians to whom the lands had originally been allotted. While defendant was in possession under his lease, and on January 24, 1919, these lands were sold to the plaintiff and the deed to plaintiff immediately recorded. Plaintiff did not at once notify the defendant of his purchase of the property, but the defendant learned through others that such purchase had been made, and on March 1, 1919, sent by check to the plaintiff the $80 rental due at that time. Plaintiff did not acknowledge receipt, and defendant testifies that he was not then sure whether the rent had ever been received. However, defendant did testify, and his testimony is uncontradicted, that in June of that same year he met the plaintiff and plaintiff told him that he had purchased the land, but that defendant made no inquiry as to whether or not the March rent had been received. In August defendant again met the plaintiff, but had no further conversation with regard to the land. At the time the November rent became due, defendant testifies that he had learned that the Indians were complaining and were making statements that they were going to endeavor to get the land back from the plaintiff. Defendant testifies that he did not, at that time, send the rental to the plaintiff, since he had decided that he would first see the plaintiff and talk the matter over with him. Defendant went to Pender some time late in the year 1919, or in the fore part of 1920, but did not find the plaintiff in town. The November rent remained unpaid, and on February 28, 1920, plaintiff served upon the defendant, in compliance with the statute, a three days’ notice, ordering the defendant to vacate the premises. Defendant immediately after the service of this notice mailed a letter addressed to plaintiff at Pender, where plaintiff resided, inclosing a check in the amount of $160, to cover the rent due November, 1919, as well as the rent.to become due in a few days, on March 1, 1920. This check was promptly returned by the plaintiff, with a letter stating that he would accept the past-due November rent, but that he would not accept the March rent. On March 4, 1920, the defendant went to Pender and there met the plaintiff, gave him a check for the November rent, and made a tender in currency of the rent due on March 1. The plaintiff accepted the November rent in settlement of the amount due for the period covered, but refused to accept the March rent, still insisting upon a forfeiture of the lease by reason of the defendant’s default.

The tidal court submitted to the jury, as issues of fact, the question of whether or not defendant knew that plaintiff had become the owner of the land and whether he knew Avhere plaintiff could be found; the question of Avhether or not the defendant Avas in default; and the question of whether or not the plaintiff had waived such default. The jury’s verdict on these issues was in favor of the defendant.

After a careful consideration of the evidence avc have reached the conclusion that there were no disputed facts to submit to the jury in this case. The case must be decided as a matter of law. The lease was in writing, but did not specify Avhere the rent should be payable.

It is the general rule that payments must be made, in the absence of an agreement fixing the place of payment, where the creditor resides, or wherever he may be found; and ordinarily the debtor in such case is bound to seek the creditor to make payment to him, provided the creditor is within the state when the payment is due. Esmay v. Gorton, 18 Ill. 483; Pomeroy v. Ainsworth, 22 Barb. (N. Y.) 118; Sanders’ Heirs v. Norton, 4 T. B. Mon. (Ky.) 464; Hale v. Patton, 60 N. Y. 233; 30 Cyc. 1185.

. Such, however, is not the rule in contracts for the payment of rent for the use of real property.

In Gear, Law of Landlord and Tenant, sec. 135, it is said: “When the lease is silent as to the place of payment, rent is payable upon the leased premises.” See Burnes v. McCubbin, 3 Kan. 221; Fordyce v. Hathorn, 57 Mo. 120; Walter v. Dewey, 16 Johns. (N. Y.) *222; Hunter v. LeConte, 6 Cow. (N. Y.) *728; Van Rensselaer v. Jones. 5 Denio (N. Y.) 449; Livingston v. Miller, 11 N. Y. 80, 91; Coke, Littleton, 201b; Sheppard’s Touchstone, 378. Bergdoll v. Spalding & Bros., 234 Pa. St. 588.

In Taylor, Landlord and Tenant (9th ed.) sec. 392, it is said: “And whether payable in money, or in kind, if no place of payment is specified, a tender of either upon the land is good, and prevents a forfeiture.” See Lush v. Druse, 4 Wend. (N. Y.) 313; Walter v. Dewey, 16 Johns. (N. Y.) *222; Van Rensselaer v. Jones, supra.

“Although the tenant .is not under obligation to seek the landlord, when the contract is silent as to the place of payment, a personal tender to the landlord anywhere is held sufficient.” Taylor, Landlord and Tenant (9th ed.) sec. 392.

In 24 Cyc. 1191, it is said: “Where no place is appointed for payment, rent issuing out of land is payable on the land.” And “Where rent is payable either in money or kind, and the lease is silent as to the place of payment, a tender of the rent by the lessee upon the land is good; and it is not required of the, lessee to make the tender to the lessor personally” — citing Fordyce v. Hathorn, 57 Mo. 120, and other cases.

So far as our research has gone, we have found no law to the contrary. There is certainly nothing in the statutes of Nebraska that changes this rule. If the contract is silent as to the place of payment, then the law fixes the place upon the leased premises. The law is reasonable. The landlord and tenant stand upon an equal basis. It is no greater hardship for the landlord to go to the tenant for his rent than for the tenant to go to the landlord to pay the same. In the absence of a contract specifying otherwise, the law fixes the place of payment upon the land. The landlord knows exactly where to go for his rent. If the law were to be interpreted that the tenant must pay to the landlord wherever found in the state, then a great burden might be imposed upon the tenant. If the landlord wished to be rid of his tenant, then he Avould be hard to find upon the first of the month Avhen the rent Avas due. It is more reasonable, just and fair to have a fixed place for the rent payment as the law now fixes it, than to have the place of rent payment travel about Avith the person of the landlord. If the latter rule were in force, the tenant would be in constant danger of lurving his lease forfeited. If the parties desire to have a place of payment other than the one fixed by Iuav, then let them agree in their contract upon that point. It is not the province of this court to change the long-established Iuav to make it easier for the landlord to collect his rent. In the instant case the rent was by law payable on the premises. Plaintiff never Avent to the premises; nor did he send any one for the rent. If plaintiff had requested payment of the rent upon the premises, it Avould in all likelihood have been paid.

Section 8467, Rev. St. 1913, provides: “A tenant shall be deemed to be holding over his term Avhenever he has failed, neglected, or refused to pay the rent or any part thereof when the same became due.” This provision of the Iuav clearly means that, when a tenant has wrongfully failed, etc., to pay rent, then he shall be considered as holding Over his term. So long as he has not violated the written contract, between himself and the landlord he is not in default. The defendant in this case has not breached the lease. He. has at all times been ready to comply with his contract and pay the rent at the place appointed by law. The plaintiff under the contract must call or send for the rent at the place where the same is payable. If he fails to do so, he is himself in default and cannot charge dereliction to his tenant, who was ready to pay him at the place fixed by the law. The defendant was under no obligation, as said in Taylor, Landlord and Tenant, supra, to go out and hunt up the plaintiff and pay the rent to him. He had the right to wait until the plaintiff called for the rent at the place where the same was payable. Because defendant did go forth and try to pay plaintiff at 'some other place will not deprive him of his legal rights under his contract.

It is thus we believe the law to be. Under this view of the law, the undisputed evidence warrants but one conclusion, a verdict and judgment for the defendant. We do not find it necessary to consider any other proposition.

The judgment is

Affirmed.