346 destruction of the property by fire;""" but it is held that when land, together with the building thereon, is demised, the destruction of the buildings does not terminate the lease, even though the lease provides that in case of their destruction the rent shall cease. 347 A termination of the tenancy may occur where the tenant abandons premises intended to be continuously occupied; in such case the landlord may enter and declare a termination of the lease. To constitute termination by abandonment there must be an actual abandonment with no intention of returning."** 348 RECOVERY OF POSSESSION 76. At the end of the tenancy, the right of the possession reverts to the landlord, and the tenant on his part is in duty bound to yield up possession. Where, however, the latter does not yield up possession, but holds over, the landlord may, in his absence, enter upon the premises, if he can do so without violence; and this although the tenant has locked up the premises. But such action often involves the risk of the commission of a breach of the peace on the part of the landlord, for which he would be amenable in an action at law. The landlord, therefore, should, in all cases where possession is withheld from him, call the law to his assistance, and obtain possession by one or other of the remedies afforded thereby.""" At common law, the ordinary remedy by which a landlord proceeds to recover possession of his premises is by an action of ejectment, and, in such case, as a general rule, the tenant is not permitted, for reasons of sound public policy, to controvert his landlord's title, or to set up against him a title acquired by himself during his tenancy which is hostile in its character to that which he acknowledged in accepting 346 29 Barb. (N. Y.) 100 (1859); 5 Ohio 477 (1832). 34950 Ill. 232 (1869); 99 Mass. 11 (1868); 347 21 Ct. of Cl. (U. S.) 195 (1886); 37 115 Mich. 340 (1897); 26 N. J. Law 525 (1857); 32 Vt. 82 (1859); Bouv. Law Dict. 350 the demise. But to these rules there are some well-defined exceptions. Of these, the chief cases are where the landlord's interest has expired during the lease;" or where he has sold and conveyed the leased premises," or where the tenant has been evicted by title paramount, and accepted a new lease under the real owner of the premises." 353 354 The common-law action of ejectment, however, is slow, and, in most cases, because of delays, affords a very inadequate remedy to the landlord. Therefore, there is provided by statutes, in England and most of the United States, what is known as a summary remedy, or a remedy by summary proceedings, for the recovery of possession of demised premises. In the provisions of these statutes are prescribed the proceedings to recover possession where the tenant abandons the premises before the end of the term without surrendering the lease, leaving rent in arrear, where he continues to hold over after the expiration of the term, or where he has become unable or unwilling to pay rent. 355 77. The manner of proceeding to obtain possession of demised premises, in the case of the tenant's refusal to yield up possession at the expiration of the term, is thus detailed in the Pennsylvania statute, which is fairly illustrative of the statutes in operation in other jurisdictions.35 The lessor of premises demised for a term of one or more years or at will . . ., upon the termination of said lease . . ., having given three months' notice of his intention to his lessee or tenant, may complain of the refusal of his tenant to surrender up the said premises, to any justice of the peace in the city, borough, or county wherein the demised premises lie, whose duty it shall be to summon the tenant to appear at a day 350 Bouv. Law Dict., citing 61 Me. 590 353 Bouv. Law Dict., citing 69 Pa. 316 354 Stat. 11 Geo. II (1737). c. 19, Sec. 16: Pa. Act 1863, P. L. 1,125, Sec. 1; 10 III. 41 (1848); 13 Allen (Mass.) 82 (1866): 20 Hun (N. Y.) 313 (1880); 5 S. & R. (Pa.) 174 (1819). 355 Bouv. Law Dict., citing Tayl. L. & T., Sec. 713; 22 Wend. (N. Y.) 611 (1840). 356 Pa. Act 1863, P. L. (1864), p. 1,125. fixed, as in other civil actions; and upon due proof being made, the tenant having notice of the time and place of hearing, of the circumstances of the case, and if it shall appear right and proper, judgment against the said tenant shall be entered that he shall forthwith give up possession of the premises to the lessor, also, judgment for such damages as the lessor may have sustained, and for the costs of the proceeding. Furthermore, the justice shall forthwith issue his warrant to a constable, "commanding him, immediately, to deliver to the lessor, his agent, or attorney, full possession of the said demised premises," and to levy the damages and costs awarded, of the goods and chattels of the lessee or tenant, or other person in possession. 357 The statute does not authorize proceedings against a tenant for life or in fee under a perpetual lease, but operates only on demises for years or at will; nor can there be a proceeding under the statute if the title to the premises be in dispute. 358 Summary proceedings are authorized by statute in some jurisdictions, to recover possession for non-payment of rent, and where the tenant vacates the premises without leaving thereon property that is subject to distress for rent. Besides, by statutes in some states, tenants may be summarily ousted for violating agreements other than for the payment of rent, and for using demised premises for illegal and immoral purposes. = 35775 Pa. 341 (1874). 3588 W. & S. (Pa) 226 (1844). THE LAW OF MECHANICS' LIENS INTRODUCTION DEFINITION AND NATURE 1. A mechanic's lien is a lien on real property, given by statutes in most of the United States, to mechanics and material men, for the price and value of improvements supplied by them.' It is a peculiar, particular, and special remedy given by statute, founded and circumscribed by the terms of its own creation.' This character of lien is to be distinguished from the lien which, at common law, a mechanic has upon a chattel or personal property upon which he has expended time and labor. This latter class, including liens on ships, lumbermen's liens, and agricultural liens, are separately treated hereinafter. The special statutory liens upon real property, which comprise our present subject, are given to mechanics and material men as security for their claims for work done or materials furnished, for and about the erection or alteration of the buildings. The lien does not create any estate in the property itself; it is a mere encumbrance on the property. A mechanic or material man has no right to retain possession of a building. until his debt is paid; he has a mere right to sue out and 1 Cent. Dict. 2 67 Ala. 594 (1880). 48 S. & R. (Pa.) 58 (1822). See subtitle Mechanics' Liens on Personal Property infra. For notice of copyright, see page immediately following the title page enforce his lien, and thus charge the property with the payment of his particular debt in preference to other debts, so far as the statute confers such preference, if all the requisites of the statute have been observed." Until a judgment is obtained, in the manner provided by the statute, it is inchoate. It is as independent for its operation and effect upon the rendition of a judgment as any other lien which is in the nature of an attachment. Upon being reduced to judgment, it affords the mechanic no right to enter or recover possession of the property, but is in the nature of a legal charge, running with the property, and encumbering it in every change of ownership.' The assignability of the lien depends upon the terms of the statute in each state. It is generally held that there can be no assignment of the lien until after the claim is filed, since before that time there exists nothing but a mere right to a lien." 2. These liens are founded upon the theory that a person who has enhanced the value of property by incorporating therein his labor or materials, should have a prior claim thereon for his compensation.' The lien gives the mechanic an additional remedy, a statutory security, for the price of the work done or materials furnished. The property is subjected to a statutory lien in advance of any judgment fixing the amount due. It is a cumulative remedy, which may be pursued concurrently with the ordinary actions for the collection of debts;" when the debt is paid, the lien is discharged." The owner of the property is left to protect himself by action on the contract; the mechanic or material man is taken care of by the statute. Such legislation assumes the inability of certain persons to protect themselves, and the consequent duty of the state to intervene in their behalf. It was for a long time questioned whether such paternal interference between parties for the 5 14 Tex. 37 (1885). 6 67 Ala. 130 (1880). 74 Metc. (Ky.) 316 (1863); 12 Wheat. (U. S.) 179 (1827). 8 55 Iowa 31 (1880). 91 Mont. 472 (1872). 1051 Miss. 495 (1876). 11 67 Me. 538 (1878). |