
    James Banks et al. vs. Miles White.
    Contract. Sights and liabilities of lessor and lessee, where the premises become untenable pending the lease, without fault on the part of the lessor. No warranty results by implication of law, as to the continuing condition of property demised by lease. The only implied warranty is as to title, and any acts by or under the landlord, which could affect the use of the property. Against every other event or contingency the lessee must provide by express stipulation, in order to exonerate himself from the payment of the rent. ■
    ITtOM SHELBY.
    This was an action of debt instituted by Miles "White against J. Bants & Co., in the common law and chancery court of Memphis, upon divers notes given for the rent of a lot in that city. It appears, that in 1848 Miles White leased the lot to the plaintiffs in error for the term of five years, and these notes were executed for the rent, payable annually. It was stipulated in the lease, which was in writing, that Banks & Co. were to build a cotton shed upon the lot, for their occupation and use, which they accordingly did. Not long afterward, the municipal authorities of Memphis had the streets graded which bounded the lot, and thereby rendered the premises useless and untenable, and the lessees, in consequence, had to abandon them. This they did, without the consent of the lessor, which they invoked before hand. Upon the trial of the action in said court, this matter was submitted on an agreed case, to his Honor, J. C. Humphbeys, Judge, presiding by interchange, who decided that these facts constituted no defense to the notes, and gave judgment accordingly. The lessees thereupon appealed in error to this court.
    T. L. Sullivan, for the plaintiff in error.
    II. G-. Smith, for the defendant in error.
   CaeutiieRS, J.,

delivered the opinion of the court.

On the 1st day of October, 1848, Miles "White made a written lease to J. Banks & Co., of the eastern half of lot 312, in the city of Memphis, for a term of five years, at a stipulated amount per annum, to be paid on the 1st of April and October of each year, for which notes were taken. Upon these notes this suit is brought. The defense is failure of consideration. The covenant required that a cotton shed should be erected on the said lot by the lessees. It appeared, that during the pendency of the lease the shed was built and occupied by the lessees. By the opening a new street on each side of said lot by the city authorities, the same was overflowed with water, and became entirely untenable and useless. It was abandoned by the lessees, and they removed the shed. It is not shown that this abandonment was sanctioned in any way, by the lessor.

The only question is, whether these facts constitute a legal defense to an action on the notes? The Court below thought not, and so do We.

The law does not imply any warranty as to the continuing condition of the property demised. The only implied warranty is, as to title, and any acts by, or under tbe landlord, which, would affect the use of the property. Against every other event or contingency, the lessee must provide by express stipulation, in order to exonerate himself from the payment of the rent.- . ..

It is no defense, that the house was blown down by storm or consumed by fire; Monk vs. Cooper, 2 Strobh., 763; Balfour vs. Weston, 1 Term. R., 310; or gained upon by the sea; Dyer, 56; or the occupation rendered impracticable by the public enemies; Paradise vs. Jane Alleyn, 26; or where a wharf was swept away by the river. In a late case in the court of Exchequer, Hart vs. Windsor, 12 Meeson & Welsby’s Rep., cases are referred to and approved, and the whole subject examined. The cases upon which the text in Chitty on Contracts, is based, and which are relied upon in this case for reversal, are there reviewed and explained, or overruled. It is there decided that there is no implied contract on the part of the lessor, that the condition of the property shall continue, or any implied condition that if it should not, the, 'lessee may abandon, and be relieved from his contract for the payment of future- rent. He is bound by his contract, and the risk is his. The law would, of course, be different where there was a failure on the- part of the landlord to perform any duties and engagements incumbent on him by agreement of the parties, in consequence of which the premises become altogether, or less suitable for the purposes intended. In that case, the tenant would have a right to quit whenever he chose, and stop the rent. There can be no distinction, in principle, between the lease of houses or lands, and the hiring of a slave for a definite time, at a fixed price. It is a familiar rule, that in the latter case the hirer runs all risks, and is bound for the stipulated hire if the slave should die or run away from him the next day, or what is worse, fall sick and continue for the whole time a tax upon him. Yery hard cases may occur, but they must be guarded against by contract'.

The law, then, was correctly charged in this case, by his Honor, and the judgment will be affirmed.  