
    Levett vs. Bickford.
    Action for a forcible detainer. Whei’e the lessor reserved a right to eii.ter, on failure of lessee to pay rent at the specified time, and to hold till the rent was paid, he must prove ftie defendant in arrears to entitle himself to the possession of the premises.
    Bickford leased a lot of ground in Memphis, for ten years, to Conant, Conant binding himself to put a brick house on the premises, and to pay Bickford the sum of two hundred dollars per annum, payable semi-annually. The lease contained this ftirther covenant, to wit: “That if said rent shall not be paid within sixty days after the same shall fall due, the said Bick-fard, his heirs or assigns, may enter and retain possession of said lot until said Conant shall pay all arrearages of rent, after which the said Conant shall again have possession- of said premises any thing in the foregoing lease to the contrary notwithstanding.”
    A part of the premises leased came by snb-letting to the possession of Levett.
    Bickford instituted an action for forcible and unlawful de-tainer against Levett, before three justices of the peace in the county of Shelby, for the recovery of the part of the premises occupied by Levett. A judgment was rendered for the defendant. The case was taken to the commercial and criminal court by writ of certiorari. It was tried in that court at the November term, 1846, by a jury, under the direction of judge Dunlap, holding court by interchange with judge King. The plaintiff, on the trial, exhibited the lease, and proved the defendant in possession of premises, and a demand of them by him, and a refusal of the defendant to deliver them.
    The judge charged the jury, “that if they found from the testimony, that the defendant was in possession of the premises by intermediate leases from E. L. Conant, then he would stand in the shoes of said Conant, and be guilty of an unlawful detainer, unless he showed that the rent reserved in the lease between Bickford and Conant had been paid as stipulated in the lease between them; that it was not necessary for the plaintiff to introduce any proof to show that the rent reserved as above had not been paid, but that it devolved wholly on the defendant to show that it had been paid. The court further charged, that it was not necessary for the plaintiff to prove, that the defendant was in possession of the entire premises described in the warrant, but that the jury might find as in the action of ejectment, that he was in possession of apart of the premises described in the warrant, and specify such part in their verdict.”
    The jury found the defendant guilty of the unlawful detainer of part of the premises sued for; and also found, that the value of the rents, during the term of the unlawful detainer, was three hundred and sixty-seven dollars; and the court gave judgment for the possession and the rents, ás ascertained by the jury.
    From this judgment the defendant appealed.
    
      Ii. W. Anderson, for the plaintiff in error.
    This is a possessory action. The principles which control the right to possession, are the same in this action, as in an action of ejectment. The court below instructed the jury, that it devolved on the defendant below, to prove payment of the rent, and that it was not necessary for the plaintiff below, to prove a neglect or refusal of the defendant to pay the stipulated rent for the premises, before he could recover. The lease, though not void for non payment of rent, nevertheless reserves the right of re-entry in the lessor for non-payment, and therefore contains a condition of forfeiture of the possession ; the difference is not in the principle, but in the extent of its operation — not in kind, but in the degree.
    The right of the plaintiff below, to possession, did not accrue until a failure on the part of the defendant to pay the rent. The failure of the defendant to pay the rent when due, being the sole ground or condition upon which the plaintiff or lessor, based his right of entry, it necessarily devolved on him to show that such failure existed, else he had no right of action. But, it may be urged, that the lessor could not prove a negative, and the lessee having the affirmative of the issue, should prové it.
    If that were true, the defendant would have to make out the plaintiff’s case; and would be compelled at his peril to show proof in his defence, ere the point upon which the plaintiff’s entire right of action or entry depended, were proven.
    The difficulty of proving a negative is obviated by requiring the lessor, to prove a demand of the rent due, from the lessee, and a failure of the latter to comply with such demand.
    
      In ejectment, upon a condition for re-entry, for non payment of rent, the landlord must prove an actual demand of the rent, of the precise rent, on the precise day. 2 Starlde Ev. 531. Authorities there cited; 2 D. & R. 29; 1 Will. Saund. 287, note 16; 7 T. R. 117; 7 East. 363; Cro. Eliz. 209.
    Nor can the lessor re-enter on the ground of a forfeiture, for non payment of rent, without showing a demand of the rent due, on the last day, of the tenant, on the premises, at a convenient time before sunset, or a strict compliance with all the formalities required by the common law; .his claim being regarded as stricti juris. Even proving a demand of the tenant at his house on the premises, in the afternoon of the last day is not sufficient. 17 Johnson’s Rep. 66; 2 Greenleaf on Ev. p. 264. There is a material difference between a remedy by. distress and a remedy (reserved by deed) by re-entry for non payment of rent; there must be an actual demand made previous to entry, otherwise it is tortious; because such condition of re-entry is in derogation of the grant; and it is presumed that the tenant is there residing on the premises in order to pay the rent for the preservation of his estate, unless the contrary appears by the lessor being there to demand it; and therefore’unless there be a demand made, and the tenant thereby, contrary to the presumption, appears not to be on the land ready to pay the rent, the law will not give the lessor the benefit of re-entry, to defeat the tenant’s estate without a wilful default in him; which cannot appear without a demand by him actually made. 6 Bacon’s Abridgment, Rent 25-26.
    So, if a nomine pcena, or named penalty, be given to the lessor for non payment of rent, the landlord must demand the rent before he is entitled to the penalty: In such cases there must be an actual demand made, because the presumption is that the lessee is attendant upon the land to save his penalty, and therefore shall not be punished without a wilful default, and that can not be made to appear without a demand he proved, and that it was not complied with. And in such cases, .the demand must be made on the day prefixed for payment, and alleged expressly to have been so made in the pleadings. Ibid. 26.
    A demand of rent reserved is necessary in order to take advantage of a condition for re-entry for non-payment of rent, unless it has been dispensed with by the express agreement of the parties. 4th Phillips Ev. p. 277.
    In 2 Greenleaf on Evidence p. 263, sec 326-7, the distinction is noticed between a condition which avoids the lease upon a failure to pay the stipulated rent when due, and which is a strict forfeiture; and a condition which gives the lessor merely the right to re-enter on the premises for non payment of rent. In either case, it is held that the lessor should prove a demand of the rent due, of the lessee, else he has no right of action. The only difference between the effect of a condition which avoids the lease, and one which gives to the lessor the right to re-enter, being that in the former case, no actual entry, on the day of failure, is necessary to avoid the lease, while in the latter case, an actual entry, or notice tp quit, made within a reasonable time, is necessary, to give lessor his right of action for the possession. But in either case it is held, that the lessee is in no wilful default, until a demand of the rent due on the premises be made, and there be a failure on his part to comply with the demand. 2 Greenleaf Ev. sec 326-7.
    • “In ejectment to recover leased premises for non payment of rent, under the usual proviso, for re-entry on non payment of rent, for twenty one days, it appeared that the rent was payable ^quarterly,.and that a demand of more than one quarter’s rent was made on the 21st day at one o’clock. Held that only one quarter’s rent should have fyeen demanded, and that at sunset.” Vol. 14th, English Com. Law Rep. 483. See also, Statute Geo. 2, chap. 29, sec. 2; 13th Eng. Com. Rep. 241; 9th do 158, 2d vol. Phillip’s Ev. 277.
    
      II. G. Smith, for defendant in error.
   Tuhltly, J.

delivered the opinion ofyUhe court.

This is an action of forcible entry and detainer, brought by Bickford against Levett, to have restored to him the possession of the premises in dispute, a house and lot in Memphis. On the trial in the commercial and criminal court, it appeared that there is a clause in the lease from Bickford to Conant, under whom Levett claims as sub-lessee, by virtue of which Rickford reserved to himself, his heirs and assigns, in case the rent reserved by the lease should at#iy time be unpaid for the space oi sixty days after it was due, the right to enter and retain possession of said house and lot until all such arrearages should be paid, after which the tenant should again be let into possession. This action was brought to enforce the right of entry thus reserved by the terms of the lease.

There was no proof that the rent or any portion of it was in arrear at the time of bringing the suit, and the judge charged the jury that the tenant must prove that he had paid the rent or he would be guilty of the unlawful detainer, and that it was not necessary for the plaintiff to introduce any proof to show that the rent reserved had been paid: whereupon the jury found a verdict against the defendant, and judgment was given accordingly, and he appeals therefrom to this court. '

We cannot doubt that the charge of the judge is erroneous. It has been argued with much force and with a fair show of authority, that before the right of entry could accrue under this lease, the landlord must in the last hour of the last day fixed for the payment of the rent have demanded it from the tenant on the premises.

When the non payment of the rent operates as a forfeiture of the lease, absolutely, the right of entry does not accrue to the landlord by reason of such non payment unless he demand the payment, as above, of the tenant, because it is a severe remedy, and not encouraged by law; but we are not now prepared to say that such is^jhe case when the non-payment does not work a forfeiture, and the right of entry is only given as a means of enforcing the payment, and the possession is to be restored upon the payment of the rent, as in this case.

But we are prepared to' say, that the non-payment of the rent is a condition precedent to the right of entry reserved by the lease in such case; that is, that there is no right of entry in this case until the rent has been in arrear for the space of sixty days. And that if the plaintiff then think proper to resort to this remedy instftid of his action for the rent he must show that he is entitled to it by proving that the rent has not been paid .within the time specified by law. But it is said that this would be requiring him to prove a negative; very well, if a man make his right by contract to depend upon his proving a negative, he must do so if he seeks to enforce his right; but in this case if it be preferred, we will hold not that he shall prove that the rent has not been paid; but that it is in arrears which is an affirmative proposition, and can no doubt be proven if true.

Let the judgment be reversed and the case remanded for a •'new trial.  