' It is not claimed that, without the special provision of the lease under consideration, there would have .been any liability, either of the lessee or of appellants, his guarantors, for the payment of rent accrui.ig after the judgment of restitution.
Provisions in leases that upon a re-entry for breach of covenants, the landlord may relet the promises for the account of the lessee, holding him for any deficiency, are. not uncommon, and have, so far as we are aware, uniformly been upheld. Hall v. Gould, 13 N. Y. 127; Morgan v. Smith, 70 N. Y. 537.
The principal question in this case is, as to the continuance of the liability of the lessee for rent, the landlord not having proceeded without process to re-enter, but having in a court of competent jurisdiction obtained a judgment of restitution under which he took possession.
It is conceded that, a forfeiture of the conditions of the lease having taken place, the landlord might, under the conditions of the lease, have re-entered without process. The fact that instead of doing without process what he might, he commenced suit to have his right established, and under a judgment of court re-entered, we do not think material. The lessee had gone out. Apparently all parties, Donnelly, Ruse and appellants, were quite willing that Sibley should re-enter. We do not see that by the caution of the landlord in declining to take possession until he had obtained a judgment of restitution, appellants or the lessee were injuriously affected or can have any exemption from their liability under the terms of the lease and guaranty. The course pursued by General Sibley was very ¡drmln.r to that taken by the landlord in Hall v. Gould supra.
The lease provides that a re-entry may be made without the same “ working a forfeiture of the rents to be paid.” We think this must refer to the rents to be paid after the reentry. An eviction is not a bar to rent that had previously accrued. Wood on Landlord & Tenant, 1st Ed., page 780; Leadbeater v. Roth, 25 Ill. 478; Wright v. Lattin, 38 Ill. 293; Pepper v. Rowley, 73 Ill. 262.
The provision can not be given any significance without holding that it applies to rents that may accrue after a re-entry. Such being the terms of the contract, appellants became, by their guaranty, guarantors of the payment of rent after as well as before a lawful re-entry.
It is urged that the judgment of restitution put to an end the estate of the lessee, and therefore no rent of the premises could thereafter accrue. So also, when under a lease permitting re-entry for breach of covenants, the lessor, upon covenant broken, re-enters, and in pursuance of provisions permitting him to relet for account of the lessee, does re-let them to a third party, the estate of the lessee is at end, for it is manifest that the same estate can not be in two separate and several lessees; yet the deficiency thus arising may be collected by the lessor.
It is immaterial whether the sum which, in the present case, appellee has recovered from appellant be rent, according to the strict legal definition of that word. The contracting parties, Sibley and Donnelly, provided that a re-entry for a forfeiture should not work a forfeiture of what they were pleased to call “ the rents to be paid.” If what they meant is clear, it is of no consequence that a lawyer might not, in endeavoring to be technically accurate, speak of sums to be paid for a period in which the lessee had no estate as rent.
We do not find that the testimony of General Sibley was introduced in evidence.
Appellants might have had the jury instructed that the affidavit of General Sibley, contained in the record of the suit for restitution, and all reference to matters contained in such affidavit, whether in the writ issued or the opinion given in said suit, were to be disregarded in the present action; but if all that appellants desired to show by Donnelly had been admitted, we do not think it would have been material.
The reception of rent by Sibley from Ruse was undoubtedly a waiver of the condition in the lease against sub-letting, but it did not release Donnelly from his obligation to pay; while of course, from his promise to pay rent which . Ruse actually paid, Donnelly was relieved.
The lease being produced, it was itself prima, fa/¡ie evidence that the rent for the expired term had not been paid; that is, the burden was thus thrown upon appellants to show payment. Aside from this, there was a good deal of evidence of a failure to pay. The agent of the landlord testified that he repeatedly demanded payment; there was no pretense that any claim had ever been set up that any rent subsequent to June 1, 1889, had been paid, and Euse testifies that the month of May, 1889, was the last payment he made.
The jury were fairly instructed, and we find no error requiring a reversal of the judgment of the Circuit Court; it is therefore affirmed.
Judgment affirmed.