1. The action of an inferior court as to the terms on which it
will allow a complainant to amend a bill in equity to which it has
sustained a demurrer is a matter within the discretion of such
court, and not open to examination here on appeal.
2. Where, under a clause of reentry for nonpayment of rent
reserved, a landlord sues in ejectment in Indiana (in which state a
judgment in ejectment has the same conclusiveness as common law
judgments in other cases) for recovery of his estate as forfeited,
and a verdict is found for him, and judgment given accordingly, the
tenant cannot, in another proceeding, deny the validity of the
lease, nor his possession, nor his obligation to pay the rents
reserved, nor that the installment of rent demanded was due and
unpaid.
3. Where, in a lease of a water power, the lease provides in a
plain way and with a specification of the rates for an abatement of
rent for every failure of water, the tenant cannot, on a bill by
him to enjoin a writ of possession by the landlord, after a
recovery by him at law for forfeiture of the estate for nonpayment
of rent reserved, set up a counterclaim for repairs to the water
channel made necessary by the landlord's gross negligence. He is
confined to the remedy specified in the lease, a covenant that a
lessor will make repairs not being to be implied.
4. In such a case, before he can ask relief from a forfeiture,
he should at least tender the difference between the amount of
rents due and the amount which he could rightly claim by way of
reduction for failure of water.
The State of Indiana, owning a certain canal and its adjacent
lands, made two leases of its surplus water, the first being made
February, 1839, to one Yandes and a certain Sheets (this Sheets
being the appellant in this case), and the other made January,
1840, to Sheets alone. Each lease was for the term of thirty years.
Certain rents, payable semiannually on the first of May and
November, were
Page 74 U. S. 417
reserved, it being provided that if any rent "should remain
unpaid for one month from the time it shall become due," "all the
rights and privileges" of the lessees "shall cease and determine,
and any authorized agent of the state, or lessee under the state,
shall have power to enter upon and take possession of the premises"
&c. The leases contained a further provision that the lessees
should not be deprived of the use of the water by any act of the
state or its agents or by the inadequacy of the supply of water for
more than one month in the aggregate in one year, and that if, for
the purposes of repairing the canal, preventing breaches, or making
improvements to the canal or the works connected with it or the
inadequacy of the supply of water, the lessees should be deprived
of the use of any portion of the water power leased, such deduction
should be made from the rent accruing on such portions of the power
as the lessees should be prevented from using as would bear the
same proportion to the yearly rent thereof as the time during which
the lessees might have been deprived of its use bears to eleven
months. In October, 1840, Sheets became owner of Yandes' interest
in the lease of 1839.
The state subsequently sold so much of the canal, land, and
water power as was embraced by the two leases, and one Selden and
others, on the 2d of October, 1857, became owners under this
sale.
Afterwards (Sheets being in possession under the leases and
having refused for several years to pay rent), the purchasers
formally demanded on the premises rents falling due on the first
day of May, 1860. The lessee failing to pay them, the purchasers
brought, in June, 1860, an ejectment in the Circuit Court for
Indiana (in which state the action of ejectment is regulated by
statute, and has the same conclusiveness as common law judgments in
other cases) to recover the possession of the property, as for
forfeiture from nonpayment of the rents reserved in the two leases.
Verdict and judgment were given in their favor. [
Footnote 1]
Page 74 U. S. 418
After five years had elapsed since the commencement of the
ejectment, the lessee now filed a bill in equity (the suit below)
to enjoin the issuing of a
habere facias on the judgment
in ejectment and for a redemption of the lands from the forfeiture
incurred for nonpayment of rent.
The bill alleged that while the ejectment was pending, the
lessees tendered to the purchasers $400 as in full for the
particular rents for the nonpayment of which the forfeitures were
declared and as in full for interest thereon and the costs of suit
up to that time, and that the same was now brought into court for
the purchasers if they would accept it and waive the forfeiture,
but it tendered nothing for rents subsequently or previously
accrued. It sought to avoid such a tender by asserting an equity to
set off against all rents a demand for damages on account of
alleged breaches of covenants contained in the leases. As for:
1. Inadequacy in the supply of water, when by the use of proper
efforts, an adequate supply might have been furnished.
2. Inadequacy of supply, owing to the culpable negligence and
gross carelessness of the purchasers in failing to repair breaches
in the canal banks and to remove obstructions created by the growth
of grass in the bottom and sides of the canal &c., setting up
the expense of repairs alleged to have been made by the lessee to
render the supply adequate.
3. Not prohibiting lessees under subsequent leases from drawing
off needed water from the mill of the original lessee to supply
their own.
The claim of reductions of the rents owing to failure of water
were from the 2d October, 1852, when the title of the purchasers
accrued, to the 1st May, 1865, when the last installment of rents
before the filing of the bill came due, and amounted to $2,649. The
rents during the same term amounted to $4,500.
The lessee alleged as an excuse for not paying the rents on one
of the leases that he had abandoned that lease and that the
purchaser under the state acquiesced, and that the title so became
vested in them by reverter, and declined to
Page 74 U. S. 419
redeem that lease from forfeiture. While thus declining to
redeem that lease, his bill sought to enjoin the
whole
judgment.
The defendants demurred, and the court sustained the demurrer,
giving leave to the complainant to amend his bill on tender of all
the rent, with interest on it that had accrued on both leases since
the bringing of the ejectment, which sums the court found to be, on
one lease $4,494.50, and on the other $2,247.25. The complainant
refusing to amend on such terms, judgment was given on the demurrer
against him, and he brought the case here.
Page 74 U. S. 420
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This is a case in equity. The appellant filed his bill to
Page 74 U. S. 421
enjoin the execution of a judgment in ejectment. The defendants
demurred, and the demurrer was sustained.
The court gave leave to amend upon terms which the appellant
declined to accept. A decree was thereupon entered that the bill
should be dismissed, and for costs. This appeal brings the case
here for review.
With the leave to amend we have nothing to do. The terms imposed
were within the discretion of the court, and are not open to
examination in this proceeding.
The only question before us is whether the circuit court erred
in sustaining the demurrer and dismissing the case. The bill is
very voluminous. We will consider the points to which our attention
has been called, so far as is necessary to the proper determination
of the rights of the parties.
The recovery was had in the action of ejectment upon the ground
of forfeiture for the nonpayment of the rents reserved in two
leases.
Both courts of law and of equity have power to give relief in
cases of this kind. Courts of law give it upon motion, which may be
made before or after judgment. If after judgment, it must be made
before the execution is executed. The rent due, with interest and
costs, must be paid. Upon this being done, a final stay of
proceedings is ordered. [
Footnote
2]
The first British statute upon the subject was the 4th George
II, ch. 28. The practice is now regulated by the 15 and 16
Victoria, ch. 76.
Courts of equity are governed by the same rules in the exercise
of this jurisdiction as courts of law. All arrears of rent,
interest, and costs must be paid or tendered. If there be no
special reason to the contrary, an injunction thereupon goes to
restrain further steps to enforce the forfeiture. The grounds upon
which a court of equity proceeds are that the rent is the object of
the parties, and the forfeiture only an incident intended to secure
its payment; that
Page 74 U. S. 422
the measure of damages is fixed and certain, and that when the
principal and interest are paid, the compensation is complete. In
respect to other covenants pertaining to leasehold estates where
the elements of fraud, accident, and mistake are wanting and the
measure of compensation is uncertain, equity will not interfere. It
allows the forfeiture to be enforced if such is the remedy provided
by the contract. This rule is applied to the covenant to repair, to
insure, and not to assign. Lord Eldon limited the relief to cases
where the lease required the payment of a specific sum of money.
The authorities going beyond this he held to be unsound, and
declined to follow them. Speaking of
Wadman v. Calcraft,
[
Footnote 3] he said the Master
of the Rolls in that case held
"that, though against ejectment for nonpayment of rent the court
would relieve upon a principle long acknowledged in this court, but
utterly without foundation, it would not relieve where the right of
the landlord accrued not by nonpayment of rent, but by the
nonperformance of covenants which might be compensated in damages.
[
Footnote 4]"
Such is now the settled English rule upon the subject. [
Footnote 5] In
Bracebridge v.
Buckley, [
Footnote 6]
Baron Wood, in a dissenting opinion, made an earnest and able
assault upon this doctrine. The question may be regarded as yet
unsettled in the jurisprudence of this country. [
Footnote 7]
Lord Redesdale held that where there were unsettled accounts
between the landlord and tenant which could not be properly taken
at law, the payment or tender of money on account of the rent might
be deferred until the rights of the parties were settled by the
decree of the court, but that where the accounts were not of this
character, equity would not intervene. [
Footnote 8]
Page 74 U. S. 423
The recovery in ejectment is an important feature in the case
before us. In Indiana, the action is regulated by statute, and the
judgment has the same conclusiveness and effect as common law
judgments in other cases. The judgment against the appellant
established the validity of the leases, that he was in possession,
his obligation to pay the rents reserved, and that the installments
demanded were due and unsatisfied. He is estopped from denying
these facts and from setting up anything in this case to the
contrary.
In the case of
Trustees of the Wabash and Erie Canal v.
Brett, [
Footnote 9] the
trustees had leased so much of the surplus water of the canal as
might be necessary for the purposes specified. The right was
reserved, upon paying for the mill to be built by the lessee, to
resume the use of the water leased whenever it might be necessary
for navigation, or whenever its use for hydraulic purposes should
be found to interfere with the navigation of the canal. It was
averred that the trustees had abandoned that part of the canal and
suffered it to go to decay, so that the water power was destroyed
and the plaintiff's mill rendered valueless. The court held that
there was no implied covenant to keep the canal in repair, that the
express provision for compensation in one case excluded the
implication of such right in all others, and that the plaintiff was
without remedy. This case, like the one under consideration, was
decided upon a demurrer by the defendants.
The tendency of modern decisions is not to imply covenants which
might and ought to have been expressed, if intended. [
Footnote 10] A covenant is never
implied that the lessor will make any repairs. [
Footnote 11] The tenant cannot make repairs
at the expense of the landlord unless by special agreement.
[
Footnote 12] If a demised
house be burned down by accident, the rent does
Page 74 U. S. 424
not cease. The lessee continues liable as if the accident had
not occurred. [
Footnote 13]
If in such a case the landlord receives insurance money, the tenant
has no equity to have it applied to rebuilding, or to restrain the
landlord from suing for the rent until the structure is restored.
[
Footnote 14]
Trustees of the Wabash & Erie Canal v. Brett is an
authority strikingly apposite in this case. In the leases set out
in the bill, as in the lease in that case, the parties provided but
one remedy for a failure of water. That is, an abatement of the
rent in proportion to the extent and time of the deficiency. The
contract gives none other. Beyond this it is silent upon the
subject. This Court cannot interpolate what the contract does not
contain. We can only apply the law to the facts as we find them.
The appellant is entitled to the remedy specified.
Expressum
facit cessare tacitum. Neither a court of equity nor a court
of law can aid him to any greater extent.
This sweeps from the case the claims set up in the bill by the
appellant for offset, repairs, recoupment, and damages, leaving to
be considered only the claim for a reduction of the rents in the
manner stipulated by the parties.
The appellant avers that he abandoned the premises covered by
the second lease, that the appellees acquiesced, and that his title
thus became vested in them by reverter. This is repelled by the
verdict and judgment in the action of ejectment.
He insists that, according to the provision referred to in the
leases, he is entitled to a reduction of the rents specifically
demanded before the commencement of the action of ejectment. The
plaintiffs could not have recovered without proving to the
satisfaction of the jury that the exact amount demanded was due.
Any failure in this respect would have been fatal to the action.
Then was the time for the appellant to assert and prove this claim.
He cannot do it now. The judgment is conclusive.
Page 74 U. S. 425
The bill claims reductions of the rents for failure of water
from the second of October, 1857, when the title of the defendants
accrued, down to the first of May, 1865, when the last
installments, before the filing of the bill, became due, amounting
in the aggregate to $2,649. The rents during the same period
amounted to a much larger sum. Conceding the appellant's demand to
be correct, he should at least have tendered payment of the
difference between these two amounts and interest before bringing
his bill. In not alleging that he had done so, the bill is fatally
defective.
A case is not presented upon which a court of equity, according
to the settled principles of its jurisprudence, is authorized to
interpose. The spirit manifested by the appellant throughout the
litigation between the parties, as disclosed by the bill, is not
persuasive to such a tribunal to lend him its aid. We think the
demurrer was well taken. The decree of the circuit court is
Affirmed.
[
Footnote 1]
See 69 U. S. 2 Wall.
177.
[
Footnote 2]
Tidd's Prac., 3 Amer. Ed. 1234;
Phillips v. Doelittle,
8 Modern 345;
Smith v. Parks, 10
id. 383;
Atkins v. Chilson, 11 Metcalf 115.
[
Footnote 3]
10 Vesey 68.
[
Footnote 4]
Hill v. Barclay, 18 Vesey 63.
[
Footnote 5]
2 Story's Eq., §§ 1315, 1316;
Davis v. West,
12 Vesey 475;
Reynolds v. Pitt, 19 Vesey 134;
Gregory
v. Wilson, 10 English Law & Equity 138;
Eaton v.
Lyon, 3 Vesey 690;
Hill v. Barclay, 16
id.
402.
[
Footnote 6]
2 Price 200.
[
Footnote 7]
2 Story's Eq. §§ 1315, 1316, and notes.
[
Footnote 8]
O'Mahony v. Dickson, 2 Schoales & Lefroy 400;
O'Connor v. Spaight, 1
id. 305.
[
Footnote 9]
25 Ind. 410.
[
Footnote 10]
Aspdin v. Austin, 5 Q.B. 671;
Pilkington v.
Scott, 15 Meeson & Welsby 657.
[
Footnote 11]
Pomfret v. Ricroft, 1 Williams Saunders 321, 322, note
1;
Kellenberger v. Foresman, 13 Ind. 475.
[
Footnote 12]
Mumford v. Brown, 6 Cowen 475.
[
Footnote 13]
Moffat v. Smith, 4 N.Y. 126.
[
Footnote 14]
Leeds v. Cheetham, 1 Simons 146;
Loft v.
Dennis, 1 Ellis & Ellis 474.
