This is an action of debt brought by Eli^ ■xabcth Mackubin, the devisee, of the reversion on an indenture of lease for ninety-nine years, renewable for ever, against the surviving lessee, (William Whetcrojt.) for rent which accrued and became due since the death of the testator, (Richard Mackubin, J and prior to. the commencement of this suit. The lease; among other covenants, contains the usual one of re-entry for non-payment of the rent within 30 days after the Same became due.
Tbs law is Well established that the lessee, under a lease for years containing the covenant of re-entry for i\»n-payment Of rent at the time siipulafed, acquires a defeasible,interest in the land leased, liable to be defeated by the entry of the lessor for non-payment of the rent at the time limited.
This clause or covenant is inserted for the benefit of the lessor, to secute» a punctual payment of the rent; and, where the entry is made, the lessor is considered as exacting a penalty in determining the interest of the lessee, by way of punishment for Mo failing to pay the rent according to his contract.
This entry is never made but when in the opinion of tfie lessor the lease is beneficial to the lessee, or where there is tjo prospect of securing the rent in future.
Such entry is not a satisfaction of the rent antecedently due, nor is it a relinquishment of the right of the lessor to it.
The rent is by way of retribution or compensation for the enjoyment of the land, and the leasee is bound fey his contract, and every principle of justice, to pay the rent which became due while he possessed and enjoyed the land; and, in the opinion of the court, the en'¿ry in this case cannot bar the plaintiff from recovering the rent which was due prior to the time of making such entry.
By an entry, sanctioned and legalized by a demand of the rent made on the land at the- proper time and place, the estate and interest of the lessee, in the land will cease and determine, and revest in the lessor, whose right to the rent in future will be extinguished. And in *154the opinion of the court, the demand of the rent is a material and essential fart, and both the pleas for want 0f a¡]eg¡ng that fact are substantially defective.
In til is case the estate and interest of the lessee in the land not being defeated or determined, the privity in respect of the estate between the plaintiff, (the devisee of the reversion) and the defendant, (the lessee,) still subsists, and this action is maintainable.
The clause of the re-entry being inserted for the benefit of the lessor to enforce a punctual payment of the rent — If on the failure of the lessee to pay the rent at the stipulated time, the lessor elects to avoid the estate of the lessee, and makes a demand and entry for that purpose, and brings an ejectment to recover the possession, it is incumbent on him to prove those acts which will vacate the lease and defeat the interest of the lessee.
The confession of lease, entry and ouster, confesses the entry of the lessor — but it does^no more, and cannot be extended further. It does hot admit that the rent was in arrear, nor that the lessor legally demanded it. Those, facts must be proved, because they are essential in avoiding the estate of the' lessee, and the proof of them is not dispensed with by the confession of lease, entry and ouster.
When the lessee, in an action brought against him for rent, would bar the lessor by shewing his estate was determined by the acts of the lessor, he must allege in Ills plea all those acts which are necessary to defeat his estate — that the rent was in arrear — that the lessor demanded it at the proper time and place, and that the lessor entered.
All these facts must concur to determine the interest of the. lessee derived under the lease; they must be alleged and proved, being necessary to constitute a bar to the action.
If proof of demand of the rent and entry are dispensed with by the 4 Geo. IT. c. 28, in ejectment brought by the lessor, such proof is not dispensed with where the lessee would avoid his estate under the léase.
In pleading, every fact material and necessary for the defendant’s defence, must be alleged and displayed in his plea.
A demand of the rent is a material and essential fact * — the defendant in his plea has not alleged it.
The defendant in his pica has alleged, that the plaintiff by authority of, and in virtue of the lease, entered, and contends it is to be inferred as a necessary intendment, that he previously made a demand, and that the allegation of a demand is involved in the allegation of the entry in virtue of the lease.
*155The entry is a distinct fact from the demand, and might be made without it.
The entry in virtue of the lease means in contra distinction to a tortious entry. The lease was the authority under which he made the entry — but whether such entry can have the operation and effect of avoiding the defendant’s interest, depends on other facts, whether there was rent in arrear, and whether there was a demand.
The marginal note in 2 Raym. 751, recognized and allowed to be law by Lord Mansfield in Bough 469, shews that the confessing the entry of the lessor under the lease is no admission of a demand. Co. Lit 202. a. note 3.
The confession of lease, entry and ouster, is a confession of the entry of the lessor, bat it is no confession of the demand, or that there was rent in arrear — Those facts rest on proof.
If a lessor makes a tortious entry on his lessee, and expels him, it is a suspension of the rent for the time he is kept out; but if the lessee regains or recovers the possession, the rent will revive, and the right of the lessor to the rent will attach or revest.
The clause of re-entry is inserted for the benefit of the lessor, and it is to secure punctuality in the payment of the rent.
As every lease is supposed to be beneficial to the lessee, the. clause of re-entry is a rod held over the lessee, to be used or not at the option of the lessor, whenever the lessee is not punctual in paying the rent.
If the lessee violates his engagement in not paying his rent, and the lessor cannot any longer confide in him, lie will defeat his interest and let the land to another. (a)
*156I consider the law as settled and established, that the lessor can recover, by action of debt or covenant, against iessee> a]j the rent incurred and become due antecedent to his entry to defeat the estate of the lessee under the covenant or clause of re-entry; that the law in this respect is founded injustice, and cannot nor ought to be shaken.
The dictum of judge Fairfax has honesty and fair dealing for its basis, and must accord with every man's sense of justice. It has been adopted and recognized by the sages of the law, and incorporated in our code or system of jurisprudence, as the law of the land. Fitzherbert, Lord Cooke, Rolle, Viner and Bacon, have sanctioned it with their approbation. 3 Com. 362. 19 Henry VI 43. Fitzh. 277.
I know o: no decisiou nor scintilla juris against it, nor is there any rule or principle of law which interposes as an impediment or bar to the recovery of the rent due before the entry of the lessor.
The demurrers ruled good, and judgment entered for the plaintiff for 315/. current money, debt, 147/. current money damages, and costs. The defendant appealed to the Court of Appeals — but the Appellant dying, the case abated in Juné 1799.
) In the case of Dormer vs. Fortescue, it was decided, that in an ejectment an actual entry was necessary to avoid a fine on the statute 21 James 1. c. 16, for the word “action” in that .statute could not mean “ejectment.” This decision was affirmed in the House of Lords, and settled and established by many cases. — 3 Burr. 1897.
The meaning of confessing lease, entry and ouster, is to bring the matter to the mere question of the plaintiff's possessory title.
In all cases, except to avoid a fine, the confession of lease, entry and ouster, is sufficient — and it i.; settled to be sufficient for an ejectment brought on a condition broken. — 3 Burr. 189/.
Where an entry is necessary to complete the landlord's title, (as where a power to re-enter is reserved to him in case of non-payment of rent; there the confession of lease, entry and ouster, is sufficient* but where it is requisite in order to rebut the defendant’s title, actual entry must be made. This is the case where a fine is to be avoided— and no other instance occurred to the counsel in the case of Dormer vs. Fortescue, which was much argued in B. R. and the House of Lords. Doug. 467, 468. 1 Salt. 259, 2 Ray. 750, Little vs. Heaton.
The law settled ever since this case. — Doug. 463. Bull. N. P. 103.
Ejec'menfc is the mere creature of the court, framed ior the purpose of bringing the right to an examination, and an actual entry can be of no service. — Doug. 468.
*156The demand of rent must be proved notwithstanding the confession of lease, entrv and ouster__2 Raym. 751 ^margin.) Dougl. 469.
The opinion of Lord Munsjield that the 2d section of the statute of 4 George II. c 28, is very confused and meant only to provide a remedy in eases of vacant possession, — Doug. 4.69.