Linden & Fritz v. Hepburn , 3 Sandf. 668 ( 1850 )

By the Court. Sandford, J.

The only ground presented by the demurrer which required any serious consideration, is that no right of entry exists in the plaintiffs; that the lease executed by them to West, operated as an assignment of the original lease, pro tanto, and there being no reversionary interest in the plaintiffs, they cannot recover.

Whatever the effect of this lease might be, as between West and the original lessor of the demised premises, we have no doubt that as between West and the plaintiffs, it is to be regarded as a sub-lease, and not as an assignment of the original term. The right to re-enter was reserved to the plaintiffs, and this suffices to enable them to enter for breach of the conditions, although there be no reversion remaining in them. (Doe. ex dem. Freeman v. Bateman, 2 B. and Ald. 168.) And see Kearney v. Post, 1 Sandf. R. 105; affirmed on appeal, 2 Comst. 394. The judgment for the plaintiffs on the demurrer, must be affirmed with costs.

On the appeal from the order granting the injunction, a different question arises. The complaint, after setting forth the violations of covenants and conditions for which the plaintiffs seek to recover, prays for a judgment of forfeiture of the term of years, that the defendants be for that cause dispossessed, and that the plaintiff be put into possession of the premises. It then prays for an injunction, to restrain the defendants from making alterations in the buildings, and from using them for retailing liquors and in other modes prohibited by the covenants in the lease.

The forfeiture and re-entry prayed, are the relief heretofore granted in the action of ejectment brought for the recovery of demised premises. The injunction asked, is purely equitable relief, heretofore given in a chancery suit, and in conformity to the principles of equity. The ejectment brought to effect a re-entry for breaches of the condition in a lease, has always been regarded in the law as a hard action, one strietissimi jturis ; and the English chancery reports abound in cases in which the courts of equity have been importuned to relieve tenants against the forfeitures claimed in such actions. A proceeding like that before us, would never have been thought of under the system of remedies in force prior to the code of procedure. Equity abhors forfeitures, and always relieves against them when possible to do so; and no man would have ventured, under that system, to ask her for one of her most benign remedies, while in the same breath he demanded from her a vigorous forfeiture of his opponent’s estate in the subject of the controversy.

Does the code of procedure make any change in this respect ? Can a plaintiff, under the code, ask for equitable relief, and in the same suit, demand a forfeiture? We are clear, that the code has not altered the rule. It has abolished the distinction between legal and equitable remedies ; but it has not changed the inherent difference between legal and equitable relief. Under the code, the proper relief, whether legal or equitable, will be administered in the same form of proceeding. In some cases, alternative relief may be prayed, and relief be granted, in one or the other form, in which cases an action at law was necessary before to attain the one form, and a bill in equity to reach the other. A suit for specific performance is one of that description. But we think inconsistent relief can be no more asked now than it could be under the old system. A vendor cannot now exhibit a complaint, demanding payment of an instalment of purchase money in arrear, and also a forfeiture of the contract of sale and restoration of possession; even if the contract expressly provided for such payment and forfeiture.

There can be no better illustration of om- meaning than this very case. The forfeiture of the term, is a relief totally inconsistent with any equitable remedy. The lessor may pursue his remedy for a re-entry and possession; or he may proceed for an injunction and damages, leaving the tenant in possession. He has an undoubted option to do either. He cannot do both at once.

“ He that seeks equity, must do equity,” is a maxim which lies at the foundation of equity jurisprudence; and it is not at all affected by any change of remedies. We imagine that a much broader effect has been claimed for the violation of the distinction between legal and equitable remedies, than was ever intended by the legislature. The first section of the code, shows what was intended by the word remedies. It is limited to actions and special proceedings, and the declared object of the preamble to the code, .is, simply to abolish the distinction between legal and equitable actions. There is no ground for supposing that there was any design to abolish the distinction between the modes of relief known to the law as legal and equitable, or to substitute the one for the other, in any case. Those modes of relief, the judgment or the decree, to which a party upon a certain state of facts, was entitled, were fixed by the law of the land. Ho inference or deduction from a statute, nothing short of a positive enactment by the legislature could change them. The code contains no such enactment, and we repeat that we do not. perceive in it any countenance for an • inference or deduction to that effect.

The chapter of the code relative to injunctions, in our judgment, does not affect the question. It substitutes an order for the writ heretofore used, and it defines the cases in which it may be granted, the latter being the same substantially as were established in our court. of chancery. It does not profess to create a new remedy. On the contrary it recognizes the injunction as an existing provisional remedy, provides the order in place of the writ, and regulates the mode of granting it. Its character as a mode of equitable relief is not at all altered or impaired.

Our conclusion is, that the plaintiffs had no right to an injunction, while they demanded a-forfeiture of the lease. As the case made by the complaint would entitle them to -an injunction if their relief had been limited to that remedy together with damages, we will permit the injunction to stand, on their stipulating not to take judgment for a forfeiture or delivery of possession of the premises. And they may amende their complaint so as to ask for damages.

Unless they thus stipulate, the order for the injunction must be reversed.