
    ERNEST BUSCHMAN and Victor H. Buschman’s Lessee v. DAVID WILSON, Thornton Connollee and Otto Ducker.
    
      Decided December 17th, 1868.
    
    Leases ; construction ; burning of demised premises.
    Where it is stipulated in a lease that the rent shall cease if the demised premises are burned down, the happening of the contingency determines the lease, and the lessee should thereupon surrender the premises.  p. 556
    Appeal from the Superior Court of Baltimore City.
    This was an action of ejectment, brought by Ernest and Victor H. Buschman, co-lessees with Otto Ducker, of certain real estate in the City of Baltimore, under a lease from Samuel Ready, to recover their interest in the said real estate from the appellees, to whom the same property had been subsequently let by the said Ready. The two leases were offered in evi*dence. The first, dated January 20th, 1863, conveyed the premises to the Buschmans and Ducker, from the 1st of March, 1863, to the xst of March, 1864, and for six additional years after the expiration of the first year, reserving a certain rent. It was stipulated in this lease that if the whole property were burned down the rent should cease. The second lease of the same premises was executed the 28th of October, 1864, by Samuel Ready to the appellees for ninety-nine years from date, renewable forever. Evidence was taken to show that the Buschmans, who were lessees under the first lease, had paid the rent regularly up to the 1st of April, 1864; that about the 16th of April, 1864, the buildings were destroyed by fire; that Ready distrained for rent, and upon a replevin the suit was decided against him; that in October, 1864, the Buschmans paid Ready the proportion of rent accruing from 1st to 16th of April, 1864, the day of the fire, which he accepted; and that they refused to pay anything for the property after that date; that after the fire they retained the key of an office on the lot, and had some lumber and a sawing machine on the premises; that after the fire they built a fence around the lot; that they had never surrendered the premises to Ready. The defendants offered evidence to show that after the fire the premises were open and unenclosed, and remained idle a long time, and that they had made expensive improvements on the premises. The plaintiff asked an instruction to the jury to the effect that he was entitled to two undivided third parts of the premises, if the jury found that the premises conveyed by the two leases were the same, and that the lessees, under the last lease, had taken possession to the exclusion of the plaintiff's lessors, who claimed under the first lease. This prayer the court (Martin, J.,) refused. And the defendants prayed an instruction to the jury to the effect, that if they found that the Buschmans had refused to pay rent after the property was destroyed by fire, and had abandoned the premises, the plaintiff was not entitled to recover. This instruction the court granted. The plaintiff *excepted to the ruling of the court in refusing his prayer and in granting the defendants’ prayer, and the verdict and judgment being against him, he appealed.
    The cause was argued before Bartol, C. J., Grason, Miller and Alvey, JJ.
    
      I. B. Alistan and William Shepard Bryan, for the appellant:
    
      By the construction of the lease to the Buschmans, they were discharged from any obligation to pay rent if the property should be burned down. But it was not provided that the lease should cease and be void on this contingency. By the terms of the lease it could be avoided by the failure to pay rent when due.
    There was no evidence that the Buschmans had abandoned the premises, and, therefore, the court erred in submitting the question to the jury. Moreover, the question was totally irrelevant. A tenant does not forfeit his lease by ceasing to occupy the premises bodily. Shannon v. Burr, 1 Hilton, 39.
    
      William Pinkney Whyte, for the appellees:
    The instruction granted by the court was strictly correct, for it left to the jury to find the original lease from Ready to the plaintiff, which, by its very words, provided for its termination, in case the whole property was burned down; and left to the jury also to find whether the whole property was burned down, its abandonment by the lessees, and their refusal to pay rent; the recovery of possession by the fee simple owner; his subsequent lease of the same to the defendants below, and their possession of it at the time of the suit. These facts being found affirmatively by the jury, the only question of law decided by the court was, that the clause containing the words, “ If the whole property is burned down, then the rent is to cease,” was intended to work a determination of the lease on the happening of the specified ^contingency. This clause in the lease prevented the recovery of any rent in the future, and put an end to the lease. Gates v. Green, 4 Paige, 355; Lamott v. Sterett, 1 H. & J. 42.
    As a general rule, where the subject matter of the demise is destroyed, the lease perishes with it. The prayer of the plaintiff was objectionable, in that it was calculated to mislead the jury, in leaving them to find the payment of rent in October, 1864, without finding the further fact, as stated in the evidence, that the rent so paid in October was only the fractional part of a quarter’s rent, from April, 1st, 1864, to April 16th, 1864, the day of the fire.
    
      
      
         By the Act of 1896, ch. 19, it is provided that a covenant by the lessee to restore the premises in good repair, shall not have the effect of binding him to rebuild, if the premises are destroyed by fire, without his fault or negligence, unless otherwise expressly provided by written agreement or covenant. As to covenants to repair, see Middlekauff v. Smith, 1 Md. 329; as to whether the failure of the lessor to repair, where he has covenanted to do so, amounts to an eviction, cf. Biggs v. McCurley, 76 Md. 409.
    
   Alvey, J.,

delivered the opinion of the court.

Fire having occurred, whereby the planing mill, and the other improvements, were destroyed, after the lease of the 20th of January, 1863, and while the lessees were in possession under the demise, the question is, whether they are entitled to hold the demised premises, for the residue of the term, as against the lessor, and those claiming under him, notwithstanding they are, by express provision of the lease, exonerated from the payment of rent. Having regard to the manifest intention of the parties, and to the fact that the appellant and his co-tenants avail themselves of the exempting provision of the lease, we think they are not so entitled.

The clause in the lease, in reference to the cessation of rent in the event that happened, must be taken as implying an obligation on the part of the lessees to surrender the premises upon the occurrence of the event that released them from the further payment of rent. Any other construction would work gross injustice, and contravene the plain purpose and design of the parties.

The principle of the case of Gates v. Green, 4 Paige, 355, if sound, would seem to be decisive of the question here. In that case, there was an express agreement between the lessor and lessee, that the rent should cease if the building ^leased should be casually destroyed, and that a stipulation to that effect should be inserted in the lease; but such stipulation was inadvertently omitted in the preparation of the lease, and the premises were afterwards accidentally burned. On bill in equity, the lessor was not only perpetually enjoined from prosecuting suit for the recovery of rent subsequently accrued, but the lease itself was decreed to be given up and cancelled.

We know of no principle of law to which that decision is opposed, and w7e think its good sense commends it to entire approval. See also Taylor’s Land. & Ten. sec. 375.

In this view of the case, the court below was clearly right in rejecting the prayer of the appellant; and, in granting the second prayer of the appellees, it but fairly and properly instructed the jury on the facts before them. The judgment must, therefore, be affirmed. Judgment affirmed.  