Clarke v. Cummings , 5 Barb. 339 ( 1849 )

By the Court, Gridley, J.

What is a reasonable search and inquiry for the lives upon the continuance of which the estate of the defendant in this cause was made by the terms of the lease to depend, is a mixed question of law and fact to be determined upon the particular circumstances of the case. What would be reasonable in one case might not be in another. I am of the opinion that the circumstances may be such as to render an inquiry of the tenant only, a reasonable inquiry an# search. If it were proved that the tenant was the only relation of the person whose life was in question, living in the vicinity of the lands, then an inquiry of the tenant would be enough ; provided it were made at a reasonable time before the service of the notice to prove the existence of the lives in question. In this case, although the tenant was a son-in-law of Mrs. Thomas, it does not appear but that she had other and nearer relatives, of whom a more successful inquiry could be made. In truth her own daughter, (the wife of the tenant,) might have been able to give information, in relatioh to the person with whom her mother was residing, and in relation to the residence of such person, had the inquiry been made of her. Again ; had the tenant himself been a second time inquired of within the year or two which preceded the service of the notice upon him, it is by no means improbable "that he would have been able to satisfy the inquiry. If Mrs. Thomas was indeed living in the county of Chautauque, it was within the power of the tenant to have ascertained the particular place of her residence ; and his interest to preserve his land, prompted by Mr. Cooper’s inquiry, would naturally have led him to do so, before the notice was served. In the absence, therefore, of all such inquiries as have been suggested, I think the judge was right in holding that at the time when the notice was served, reasonable search and inquiry had not been made. It is no answer to say that, if Mrs. Thomas was alive she might have been produced, or proof made, pursuant to the provisions of the lease, that she was alive, within the year after the service of the notice. Such production and proof would have imposed a burden upon the tenant, which he was not bound to assume, until a search and inquiry, such as should be reasonable, had been made by the landlord. We do not think that a foundation was laid for calling on the tenant to produce Mrs. Thomas, or to prove the continuance of her life under the provisions of the lease,

We however do think, that there was proof which raised a presumption of her death, which, if that had been made a ground of objection to the nonsuit, the defendant should have been required to repel by evidence. It is enacted (1 R. S. 749, § 6) that “ if any person upon whose life any estate in lands ór tenements shall depend, shall remain beyond sea, or shall absent himself in this state or elsewhere, for seven years together, such person shall be accounted naturally dead, &c. unless sufficient proof be made in such case of the life of such person.” This is a substantial transcript of the former act, which was passed in 1788, and is found in 1 R. L. 103, § 1. Accordingly we find it laid down (2 Phil. Ev. 285) that “ the presumption of the continuance of human life ends, in general, after the expiration of seven years from the time when the person was last known to be living.” The same rule is laid down, in the same way, by Starkie. (Stark. on Ev. part 4, 457, 1121, 1252. See also 6 East, 80 ; 4 Barn. & Ald. 433 ; 2 Id. 386.) In this case there was no evidence of the existence of the life in question, except what was derived from the defendant himself, for the last eight or ten years. It was therefore not a case to be adjudged in favor of the defendant upon this point, had the plaintiff’s counsel presented this question to the justice upon the trial.

The lease under which the defendant claimed, contained several covenants to be performed by the lessee ; and it was made a condition that the lessor, his heirs or assigns, might re-enter for a neglect or refusal to perform any of the covenants. One of the covenants is stated in the following words : “ And also that the said party of the second part, his executors, administrators and assigns, shall and will from time to time during the term aforesaid, retain and keep and set apart one-sixth part of the said land for wood, and shall not, or will not, cut or destroy, or permit any person or persons whatsoever to cut or destroy any part of the timber and wood growing thereon, excepting only for making or repairing the buildings to be erected on the said piece or parcel of land, and for necessary fencing, and fuel for one dwelling house on the same.” The premises were estimated in the lease to contain 129’- acres of land, one-sixth of which would be 21 acres and a fraction over. A surveyor testified that he had ascertained the quantity of wood land remaining on the farm, and the same fell about seven acres short of the required quantity. It also appeared that for several years past the farm had been occupied in two parcels, by the defendant and one Denton, who had occupied the premises and paid their rent in severalty. The rent, however, though paid by each tenant, for the part which he himself occupied, was nevertheless received by the agent of the plaintiff, and credited on the lease generally. Üpon this state of facts several questions arose upon the trial, and are now presented for our decision.

1st. Whether, by this severance in the occupation of the premises and in the payment of the rent by the respective occupants, the conditions of the lease have become severed, so that an act which would work a forfeiture of the lease, if committed by a sole tenant, will now work a forfeiture of the share only which is held by the tenant who commits the act. In other words, whether the several tenants are to be treated as separate lessees, each of whom is responsible for his own acts only.

No authority has been cited which shows that when the covenants and Conditions are entire, as they are here, embracing the whole premises conveyed by the lease, and by the very terms of the lease made applicable to them as to one undivided parcel of land, or farm, the mete receiving, from the several occupants, for their convenience, the portions of rent agreed on between the co-tenants as the portions of each, will have the effect to work a change in the scope and application of the covenants. If this were so, the intention of the lessor, to preserve a given quantity of wood and timber land, and to protect the premises from the destruction of wood and timber on the part so reserved, would be liable to be utterly defeated. On the contrary, we understand the rule to be established otherwise; and that such a consequence does not follow unless the title to the reversion, or the right to receive the rents, has been severed, so as to be vested in different persons. (See 3 Kent's Com. 469; 3 Denio, 140; 1 Id. 516.) In this particular case, all that could, in any view of the case, be inferred against the lessor, would be a consent to a separate holding and occupancy, by the second tenant, subject however to the covenants in the lease. This was expressly so held in Jackson v. Bronson, (7 John. 227.) In that case, the lessee assigned the north half of the premises (by the written consent of the lessor) to one Shaw, who cut off all the timber on his part of the lot. It was there held, however, that the lessee was responsible for any act of his assignee amounting to a breach of the covenants or conditions of the lease. (See opinion of Van Ness, J. on p. 232, citing Cro. Jac. 521; Cro. Car. 188, 580.) We therefore think that if either the defendant or Denton has committed any act which, by the terms of the lease, creates a forfeiture of the estate, the forfeiture attaches to the whole lot Originally leased.

2dly. The next question is, whether the acts of cutting off the wood and timber, which were proved on the trial of this cause, have worked a forfeiture of the estate.

(1.) The Very fact of cutting and clearing off the wood from the farm so as to leave only 13 instead of 21 acres of wood, was an act which created a forfeiture, by the very terms of the covenant, unless the quantity of wood land was thus reduced, by the cutting it off for the purpose of building, repairing, fencing, or fuel for one dwelling house. The testimony does not inform us how much of the seven acres was cut off for those purposes; but there is no dispute but that the two acres cleared off by Denton, four or five years ago, were sb cleared off without reference to any such purpose as authorized an encroachment upon the 21 acres. It is true that the forfeiture may have been waived by the subsequent receipt of rent by the lessor with a knowledge of the forfeiture.

(2.) It appears by the testimony, that since the quantity of woodland has been reduced below the number of acres reserved by the lease, valuable timber has been cut and sold for a mill shaft; some 20 or 30 maple logs have been sawed into timber fit for wagon axletrees, and disposed of to purchasers; alder trees, of a size varying from 2 to 6 inches in diameter, have been cut and burnt into coals and sold off the farm, besides some other wood which has been used for fire wood elsewhere than on the farm. This was all attempted to be justified, upon the ground that the tenants procured fire wood and fencing timber from theif other lands, and that they had not withdrawn from this particular lot more wood than they were authorized to do by the lease, though they had used it for other purposes. We are aware that these covenants are to be liberally construed to prevent a forfeiture; but we do not believe that the court can make for the parties a new contract, or essentially change the old one. It is still a binding contract upon the parties, and if either party has violated its plain provisions, he must submit to the consequences prescribed by the instrument itself. We are therefore bound to hold that the fact that the tenant has chosen to procure his fire wood and fencing timber from other lands, does not justify him in cutting and selling valuable timber which good husbandry would dictate should not be used for either of those purposes. This would be to allow the tenant to change materially the terms of the covenant. His fire wood should be reasonable estovers, which would require him to use first the dry and dead trees, if such were to be found on the premises; and the cutting of green trees for such use, without necessity, would be waste. (7 T. R. 234.) By what authority, then, can he say, “ I will leave this fire wood to decay on the premises, and indemnify myself by taking valuable timber in its stead 7” So, too, the most appropriate timber for fencing should be used; and the lease does not authorize the tenant to procure his rails from other premises, and make that an excuse for selling off the valuable maple timbei> Again; it would seem that there was a large growth of alders on this farm, and that this kind of wood is valuable for coal. This was a kind of wood or timber which the tenant had no right to remove from the land. And the fact that it is comparatively short lived, does not alter the rights of the tenant, under his covenant. He had no right to use any of the wood or timber growing on the premises, except for the specified objects; and when he uses wood or timber for other than the specified objects, and such wood or timber as is not suitable for these specified objects, he commits a wrong against the lessor and diminishes the value of his reversionary interest in the premises. We see no justification for these violations of the covenants in the lease. It will be observed, that we say nothing of a case, in which the tenant should take precisely what, and precisely as much, and no more than the lease authorized, though he should use it otherwise than was contemplated by that instrument. For instance, if he had a house, not on the premises, but near them, we do not say that he could not use the fire wood, which the lease gives him, in his house, though not situated on the premises. What we mean to say is this, that he must comply substantially with the conditions of the lease. He cannot omit for years to take fire wood and fencing timber from the lot, suffering the wood proper for these uses to be decayed and wasted ; and then by way of compensation or indemnity, enter upon the premises and take timber and wood to which the covenant never gave him a right.

3dly. If the plaintiff has received the rent accruing after any of those acts which would give him a right to declare the lease forfeited, with a knowledge of those acts, the forfeiture is waived. But it must appear that he had knowledge of such acts. In 7 John. Rep. 234, 235, Judge Van Ness, says, in a like case, “ It does not appear that the lessors or their successors knew that a forfeiture had been incurred, and the acceptance of rent, unless they did, at the time, know of this fact, is no waiver.” If there were facts in this case to show such knowledge, this question should have been submitted to the >7;

It is also argued that the premises have been forfeited by a failure to plant or replace the requisite number of apple trees. But we are of the opinion, with the justice before whom the case was tried, that there was no evidence that the number of trees was deficient when the suit was commenced. The only witness who gave any evidence on this point, made his examination but a short time before the trial. This was not enough. For aught we know, the missing trees had been torn up by the wind or otherwise destroyed after the suit was commenced.

A new trial is granted.