
    *Dudley v. Estill and Another.
    July, 1836,
    Lewisburg.
    (Absent Cabell and Cabe, ,T.)
    Lease — Termination—Sale of Land by Lessor — Necessity of Surrender by Lessee — Case, at Bar. — Lease of land by M. to F. for a term often years, for 150 dollars yearly rent reserved, with a proviso, that If M. should sell the premises, during the term, on certain specified terms, F. the lessee shall give possession at the end of the then current year; F. assigns the term to D. with a like proviso for giving possession in case of M. selling the premises on the specified terms, during the term; then, D. assigns the term to C. & L. reserving 200 dollars yearly rent, to be paid by them as long as the lease lasts, with a proviso, that if M. shall sell the property agreeably to the original contract between him and F. the lessee, this contract of course shall expire; Held,
    1. Same — Same—Same—Same.—By the covenant between M. the lessor and F. the lessee, the lease would not determine by M. ’s sale of the premises alone, without surrender made by the lessee and accepted by the lessor, or at least without the surrender being demanded; for the lessor or his vendee might waive the surrender, and in that case the lease would continue; and
    2. Same — Same — Same — Same. — By the covenant between the assignee D. and his assignees C. & Ij. they were bound to pay the rents reserved as long as the lease continued, and the lease might continue, notwithstanding M. the lessor's sale of the premises, if the surrender thereof was not made, or was not demanded, much more if it was expressly waived, by the lessor or his vendee, the sale by M. not being per se an eviction of the term.
    3. Same- Same — Same—Same.—It seems, that in case of a sale made by M. not upon the precise terms mentioned in the covenant between him and F. upon which the latter was to give the possession, but upon terms equally or more advantageous to him, F. or his assignees would be bound to surrender the premises, if demanded by M. or his vendee.
    4. Repleader — Verdict on Immaterial Issues. — Verdict, found on issues made up upon faulty or defective pleas, and so on immaterial issues, set aside, and repleader awarded.
    By deed, dated the 20th November 1815, between James Moffett and James Erazier, Moffett leased to Erazier 1000 acres of land for a term of ten j’ears, at a yearly rent of 150 dollars: and Erazier covenanted, *that if Moffett should make a fair sale of the premises for 10,000 dollars, one half in cash, and the other half in four annual instalments, then and in that case, Erazier should give possession at the end of the year after such sale. Erazier, by deed dated the 9th Eebruary, 1816, assigned the lease to William Dudley for the residue of the term; Dudley covenanting, that in case Moffett, the lessor, should effect a sale of the premises for 10,000 dollars, half in cash and the other half in four annual in-stalments, Dudley should give possession at the end of the year after such sale should be made. Dudley, by deed dated the 4th April 1817, assigned the residue of the term yet to come in part of the premises to Betty Curtis, with a proviso, that if Dudley should have to give up his lease, in case of Moffett’s selling the premises, Curtis, should in like manner .give up the part so under-let to her. And afterwards, by what was called “an article of agreement,” dated the 31st May 1817, Dudley assigned the residue of the term yet to come (subject to his previous assignment thereof in part of the premises to Curtis) to John Estill and Martin Coyner, for a yearly rent of 120 dollars in one event, and of 200 dollars in another event (which last, it seemed, actually occurred), as long as the lease should last, — with a proviso, that “if Moffett should sell the property, agreeably to the original article entered into between him and Frazier, this article of course should expire. ’ ’
    Of the 1000 acres of land which was the subject of these contracts, Moffett, by articles dated the 12th January 1818, agreed to sell 400 acres to Frazier, in fee simple, to make a conveyance thereof to him within three months from the date of the articles, and to give him possession on the 1st January 1819, for 6000 dollars to be paid by Frazier; namely, 3000 dollars at the time of the delivery of the conveyance, and the other 3000 dollars, in three annual in-stalments, of 1000 dollars *each. And by other articles dated the 28th February 1818, Moffett agreed to sell the residue of the land (600 acres) to Dabney Cosby and William Lambert in fee, to convey the same to them when required, and to give them immediate possession, reserving to the tenants then on the land the privilege of occupying the houses till they could gather the crop then growing, for 5600 dollars ; namely, 4500 dollars to be discharged by work and labor, in the building of houses, which the vendees had contracted to build for Moffett, and the balance 1100 dollars, to be paid in six equal annual instalments commencing on the 1st October 1820.
    Dudley brought an action of covenant against Estill and Coyner, in the circuit court of Augusta, on the covenants contained in the articles between those parties of the 31st May 1817. The declaration, after setting forth the lease from Moffett to Frazier, and the assignments of the term by Frazier to Dudley, and by Dudley to Estill and Coyner, and the covenants therein contained, — alleged, as the breach of the covenants contained in the articles of the 31st May 1817 on the part of Estill and Coyner to be performed, that they had not paid him the rents reserved to him in those articles, according to their covenant in that particular.
    Estill and Coyner took oyer of all the deeds; and then pleaded, 1. Covenants performed : 2. An eviction by the better title of the purchasers of the land from Moffett: 3. A determination of the lease by sales made by Moffett, according to the terms stipulated in his original lease to Frazier: and 4. A determination of the lease by the sales made by Moffett to Frazier and Cosby and Lambert, which were averred to be more advantageous to him and more difficult to be obtained, than the terms mentioned and provided in the covenant for the surrender of the release by Frazier, in the original lease from Moffett to Frazier, — and payment of the rents reserved, till the time when the lease was so determined.
    ^Dudley put in a general replication to the three first mentioned pleas, and issues were made up upon them. To the last plea he replied specially, that by the covenants in the lease from Moffett to Frazier, Moffett was only authorized to determine the lease, in the case of his selling the land for 10,000 dollars, one half to be paid in cash at the time of such sale made, and the other half in four annual in-stalments, and he did not sell the premises to Frazier, and Cosby and Lambert, upon those terms. Estill and Coyner put in a general demurrer to this special replication, and the court overruled the demurrer; whereupon, they put in a general rejoinder to it, and so an issue was made up upon it.
    The jury found a verdict for the plaintiff on the issues joined on the two first mentioned pleas. And as to the issues on the other two pleas, they found a conditional verdict for the plaintiff, for 397 dollars with interest &c. if the court should be of opinion, that Moffett’s right to sell the premises, under the covenant contained in his lease to Frazier, was so limited, that he could only sell for at least 5000 dollars-cash and at least 5000 dollars in four annual instalments, and that a sale for an equivalent or even more in value, equally or more advantageous to Moffett, and equally or more difficult to be effected, would not in law suffice to constitute a substantial and valid sale according to the true intent and meaning of that covenant: but if the court should be of opinion, that a sale made by Moffett for an equivalent or something of more value to him, than 5000 dollars cash and 5000 dollars in four annual instalments, and a sale more advantageous to Moffett though less difficult to be effected, (as they found that Moffett’s actual sale was), was within the intent and meaning of that covenant, then they found for the defendants.
    Upon this conditional verdict, the court gave judgment for the defendants: to-which this court, upon the petition of the plaintiff, allowed a supersedeas.
    *B. G. Baldwin, for the plaintiff in error.
    Peyton, for the defendants.
    
      
      Leases Void and Voidable. — In 2 Min. Inst. (4th Ed.) p. 773. the author says: "A condition avoiding a lease upon a contingency (e. g., the lessee’s nonpayment of rent). according to the modern, authorities, does not render the lease absolutely void, ipso facto, though it be expressly so declared; for that would enable the lessee, hy his own misconduct, to determine the lease at his pleasure; but it leaves the i lessor the option of entering for the breach of condition, or not, at his will; and the lease being thus voidable only, and not void, it is confirmed by the lessor’s subsequent acceptance of rent, or other unequivocal waiver of the forfeiture. (2 Lom. Dig. 129; Dudley v. Estill, 6 Leigh 562; Jones v. Carter, 15 M. & W. 718.)”
    
    
      
      Repleader. — See Baird v. Mattox, 1 Call 257; Taylors v. Huston, 2 H. & M. 161; Terrell v. Page, 3 H. & M. 118.
      
    
   TUCKER, P.

I altogether concur in the sentiment expressed by the counsel for the appellee, that, in the construction of contracts, we should look sedulously to the real intention of the parties, as evinced by the whole instrument, instead of being tied down to the literal terms of a particular clause. Adopting this rule, let us look into this contract, and see what was the real design of the contracting parties.

Moffett, in November 1815, made a lease of 1000 acres of land to Frazier, for the term of ten years, at a certain rent; but as he contemplated a sale of the land, provided he could do so advantageously, it was provided between the parties, that if he should be able to sell for 10,000 dollars, Frazier should surrender the possession at the end of the then current year. It is obvious from the provision, that it was introduced for the benefit of Moffett, not for the advantage of Frazier, who being unwilling to part with a lease which he doubtless deemed profitable, else he would not have taken it, insisted upon a sale for at least 10,000 dollars, before he would hold himself bound to surrender. This lease Frazier transferred to Dudley, and Dudley, after-wards, to Estill and Coyner. In the transfer from Frazier, there is a provision for the surrender of the possession, simitar to that in the lease from Moffett to himself. But in the deed from Dudley to Estill and Coyner, instead of such provision, other language is used: Estill and Coyner agreed to pay the said Dudley two hundred dollars annually as long as the lease should last, but if Moffett should sell the property “agreeably to the original article between him and Frazier, this article of course should expire.” Now, this expression is not equivalent (nor was it so designed) to a declaration, that the lease should expire absolutely upon the completion of the sale *by Moffett. It was a mere reference to the fact that the sale would, according to the original articles, probably terminate the lease, and then the contract between Dudley and Estill and Coyner would of course expire. It was not the interest of Estill and Coyner to terminate their own lease, before the rights of Frazier or Dudley, under their contracts, were terminated. And Dudley, on his part, had no motive for desiring to defeat and terminate the lease of his under lessees, before the original lease was at an end. He had sold, and they had bought, his lease out and out, and by the first part of the articles his whole interest was parted with for the residue of the term of ten years. If from any cause, the original lease continued during the whole term, Estill and Coyner were fully entitled to it. And this phrase was introduced into the contract, merely to attest the intention and understanding of the parties, that the possession and interest of the under lessees were to depend upon the continuance or the termination of the original lease to Frazier. In the deed to Betty Curtis, the idea is carried out more clearly, indeed; but I am persuaded that the intention was the same in both cases. If, for instance, after the sale by Moffett, he had waived the surrender' of the lease by Frazier, and if his vendee had also waived it, the lease would not have been defeated or terminated. The lease to Frazier does not provide, that immediately upon the sale the lease shall cease and be void, in which case it would instant^ and ipso facto have been at an end; but it provides for a surrender, in that event, by the lessee. Until that surrender was made and accepted, or at least was demanded, the lease continued in full force; and if the parties waived it, the lease was not impaired. Even if the lessee had refused to surrender, though he would have been liable in covenant, yet he could not (I incline to think) have been ousted by ejectment, without a previous demand. But certain it is, that if Moffett and his vendee waived *the surrender, the lessee was still in under his original lease. Could it then be contended, that although the lease was not terminated by surrender, but was continued by a waiver of it by those entitled, Estill and Coyner’s term was at an end, and their title gone? Could Dudley, who had assigned to them his whole lease have successfully claimed the possession from them for the unexpired residue of the ten years lease? Might they not well have said, that the true intent of the contract was, that he was to have the lease so long as it continued, and that until the surrender by those under whom they claimed, he was entitled to the possession? To me it appears obvious, — and that Estill and Coyner’s rights as lessees, could not be terminated, unless by their own voluntary surrender, or the surrender of those under whom they claimed, or by a demand of the possession on the part of the lessor or his vendee. If this be the state of the case, then it is obvious, that Estill and Coyner are liable upon this covenant for the rents until the termination of the lease by the entry of Moffett or his vendee.

The verdict of the jury has expressly negatived the fact of such an entry, by finding for the plaintiff upon the plea alleging an eviction: and hence I infer, that the plaintiff is entitled to a recovery.

The verdict upon the other pleadings, however, creates some embarrassment; for the jury find for Dudley, if Moffett’s sale was not within the contract, but they find for the defendant, if it was. Now, this finding is upon the two last pleas only; for on the other two, the verdict is unconditionally for the plaintiff. And the verdict not only goes out of the issue as to the third plea, and submits a question of law upon the two pleas, without responding to the fact, but in truth and in fact both of those pleas are insufficient and defective. Had they alleged the termination of the lease, without more saying, they might have been sustained; but they undertake *to set forth by what, and in what manner, it was determined. And if I have been right in the view I have taken of the case, the facts set forth shew no termination. They only set forth the sales made by Moffett, which did not terminate the lease, but only gave a right to terminate it. They fall short, therefore, of what is necessary to constitute a good bar. Indeed, upon the demurrer to the replication to the last plea, judgment ought to have been given, that that plea was naught. The third plea was equally defective, and the verdict being for the plaintiff upon the only good pleas, judgment cannot b'e entered for the defendant upon his bad pleas, whether the sale was within the meaning of the contract or not.

There must, therefore, be a reversal of the judgment, the verdict set aside, and a repleader awarded ; upon which the plaintiff may demur to the faulty pleas. 1 Chitt. Plead. 694.

The court, however, thinks it not improper to say that it considers the sale of Moffett as substantially within the contract.  