Sunbury American. [volume] (Sunbury, Pa.) 1848-1879, 1858-03-27
(From the Pennsylvania Enquirer1
Highly Interesting Legal Decision.

hlSnly interesting Legal DECISION.
Grove VS.. Iughes-Tbs was an action
tried before Judge Strong ut Nisi Prius, the
facts Of which were these ;-Wm. Hughes
had leased to d. u. Grove for seven years .he
| premises, l02 North Eighth street. ut an an
nual rent of $4,000. These premises were
burned from about one yenr from the com
mencement of the lease. They were insured
and the policy was held by the landlord, who
drew the insurance money and did not re-
build. The tenant did rebuild, and having
paid his rent, brought this action to RECOVER
the amount expended by him in rebuilding.
Judge Strong held that in the case of a
lease containing no express covenant on the
part oil the landlord to rebuild, that he was
not bound to rebuild that the fact Of Lis re-
celVing insurance money created no obllga-
tlon to rebuild; that the rent was not sus.
pended by the destruction of the premises,
but the tenant must continue to pay it; and
that since the lease provided that at its ex-
piratlon the tenant should surrender ii ain
good order, reasonable wear md tear eXcep-
ted it was questionable whether the tenant
himself was not at all events bound to rebuild
The judge therefore directed non suit.
! The circumstances which led TO the litiga-
tion are, that Hughes applied to Theodore
Cuyler, Esq, for written opinion as to the
case. Having given that opinion and finding
its legality contested Mr.. G. was constrained
to follow it into Court, and there maintain it,
as he did successfully. The following is CO.
py of the opinion -
William Hughes, on the 10th September,
1851, leased to Daniel B. Grove for the term
of seven years, the premises No. lO2 North
Eighth street. The lease contains no cove
cant to repair, either by the lessor or lessee,
but provides that at the expiration of the
term the lessee shall deliver the premises to
the lessor "in like good order as at the pre-
sent time, reasonable wear and tear alone ex.
cepted."
These premises have been partially de-
stroyed by fire, and being thus rendered un.
tenantable, am asked several questions, the
answers to which are intended to express my
opinion of the relations Of the lessor and les.
see to each other and to the premises.
/. Is the lessor bound to rebuild these pre-
misses?
j answer-IIe is not bound TO rebuild
The lease contains no covenant on his part
to do either extraordinary, nor what are call.
ed tenantable, repairs
! have had more difficulty in determining
that, under the provisions of this lease, the
lessee is not bound 10 rebuild That the les.
see would be bound to rebuild under an ex-
press covenant to repair and keep 10 repair,
L
to be well settled. Whether under q cove
nant TO repair and keep in repair the tenant
is bound to rebuild the premises, in case they
are destroyed by fire, was considered doubt
ful, but 1t is now well established that he is
bound to rebuild" Arch. on Land and Ten
l1Ii Bullock VS.. Dounnit, 6 Il. II. ESQ; Dig
by vs. Atkinson, a Camp. 265. at has been
held that the lessee is bound TO rebuild, if
necessary where he has covenanted to repair
and deliver up the premises in as good condi-
tion as when he obtained possession Per-
haps there is no relief against an undertaking
so positive and unequivocal." Huston vs..
Springer, 2 Rawle, 100.
In this case however there is no covenant
to repair, and for this reason ! incline to the
opinion that the tenant is not bound to re-
build, although am not nsensible of the
! force OF the words reasonable wear and tear
alone excepted."%
2. Is the rent suspended By the condition
of the premises, or must the lessee pay the
= rent and continue to do so while the premises
. are untenantable?
3 answer-The rent is not suspended, end
/. the lessee must continue to pay it to the ex
t pir alton of his lease, even though wholly de-
;, prived, by reason OF the condition to which
n the fire has reduced the premises, Of their en-
D joyment.
: This follows from the express language o
y the contract between the lessee and lessor
which is, to pay the rent absolutely and at al
y events and has been repeatedly recognized
, to be the rule in decisions upon similar lease
8 The lessee cannot plead in defence his cove
e nant TO pay, the destruction Of the premise
j. by fire. the refusal Of the lessor to repair, th
J. receipt OF the insurance money by the lessor
d or any such defence Thus in MacLaw VS.
J. Lambert, 3 Barr, 444 In a suit by land
y lord against tenant to recover rent for dem
b sed premises destroyed by fire during tenan
5, cy, evidence that the property was insure
d aud the lessor received insurance money, O
" that the landlord received sum Of money 70
IS loss OF said property out OF q general relic
d fund, is immaterial to the issue, and canno
be used as defence. If landlord take
is possession Of the ruins of his premises d,
% stroyed by lire, for the purpose Of rebuildln
70 without the consent of his tenant, it is q
1t eviction; if with his assent it is a recision
IS the case and in either case the rent is su
Is pended" To the same effect is Smith v
n Ankim, l3 S. & r.; 39. | am of Opinion
le therefore. that the lessor is not bound 10 r.
IN build. and that the lessee, in this case, is nj
le bound to rebuild; that the liability of the lie
Ig see for the payment Of the rent continue
Ill and will contlnue during the remainder Of h
lease; that the receipt of insurance none
re by the lessor will not affect this view OF Il
in case; that the lessor has no right TO ent'
Of upon the demised premises without the co
n sent Of the tenant even for the purpose Off
b. pairing, and that, il he enters for that pu
in pose without consent Of the lessee it will
he an eviction, and will suspend the rent ier Il
al time being.
be The reader will therefore perceive that
Mt A leases house from B, and that houi
ne burns down, unless there is a clause inserte
a providing to the contrary he eau be compe
It, led to pay the rent Of the property up to Il
by last moment of the expiration Of the lease
ne The case in question has been carried to u
~ supreme Court, but with the law bearing l
ny positively, no expectation can be entertaine
ms as TO the reversal Of the decision.
ne at was decided in New Kork, in the cas-
lis of Warner VS.. Hutchins. Barb. ). 6, $50
ks "Where lease contains covenant on II
te part Of the lessee to deliver up possession
Is. the premises at the end Of the term in as goo
en- order and condition as al the date OF the lea
nd ordinary wear and tear excepted, but whe
ng there is no covenant to repair or rebuild, al
ne the demised buildings are destroyed by hr
OF the Lessee is not bcpad to rebuild"