Owens v. Hickman

The remedies sought are inconsistent with each other. The right to recover the rent depends upon contract; the right to be restored to the possession rests upon the ground that the defendant has no claim to the property; or in legal acceptation is a trespasser. Hence the claims can not stand together.

By the terms of the lease the rent is not made a lien upon the term leased; a simple forfeiture of the estate is made to depend upon the refusal to pay the rent reserved, at the time and place stated, after demand.

*472The payment of the rent after the right of forfeiture accrued, and the subsequent occupation by the tenant, would be a waiver of the right to forfeit; and the recovery of a judgment for the rent in arrear, might preclude the landlord from asserting a forfeiture, for the breach of a condition he had once assumed could be compensated for in damages. "We know of no case, where such a remedy has been allowed, after action brought and a recovery had.

The result is very clear. In this form we can grant but one of the claims of the plaintiffs; we may give judgment for the rent due, dismissing the petition as to the right to recover the term ; or-we may restore the plaintiffs to the possession of their term, leaving them to pursue another remedy ,;for the recovery of the rent in arrear. This is the rule, as we find it settled in 9 Paige, 430, Stuyvesant v. Davis, and 20 Barbour, 467, Underhill v. Saratoga & Wash. R. R. Co., and is entirely consistent with the law as we have always understood it to exist.

'Demurrer sustained.