landlobd amd tbxamt: renewal of feituré. The only point presented for our consideration is one arising upon the construction of a lease. It is properly before us upon exceptions to cer- . , ,. x , , tain instructions given by the court below to the jury. The lease was for the term of two years, with an agreement that defendant should have “ the privilege of three years in addition, from and after the expiration of said two years.” The following provision is contained in the lease, viz.:
The evidence tended to show that the defendant had given the notice required, of his election to continue for three years longer, and that he did not secure the rent according to the provisions of the lease, nor offer so to do, and that the security was at no time demanded by plaintiff. The court instructed the jury, in effect, that defendant could maintain no right to possession under the lease, unless he had secured, or offered to secure, the rent, as provided in. the lease. To this instruction defendant objects. This is the only question raised by the record. Strain was the original lessor, and it is admitted that the land was conveyed to plaintiff by him.
It is claimed by defendant that, having given the notice required by the lease, it was not forfeited by reason of his failure or neglect to give the security, which would only have happened upon demand thereof by plaintiff, and neglect or refusal to comply by defendant.
It will be observed that the lease was for the term of two years, and at the expiration of that term was to terminate, subject to be continued or renewed upon notice, and security for the rent being given. These conditions are most evidently precedent to the renewal or continuance i-n force of the lease, and unless they were performed the instrument ceased to operate for a future term. The one act, notice, made a condition for the continuance of the lease was no more essential than the other, and, if one could have been omitted, both could
The case of Tate v. Crowson (6 Ired. [N. C.] 65), does not support the views of defendant’s counsel. In that case the lease was for four years, with a condition that at the end of each year the rent for the coming year was to be secured, and in default thereof the lease to become forfeited. It was held that in case of failure to give the security required, the lease did not become forfeited without demand by the lessor for the security provided for. This is in accordance with the views above expressed, and by no means in support of those of defendant’s counsel.
Defendant offered to prove that, at the time he gave plaintiff notice of his intention to continue under the the lease, plaintiff’s wife, in his presence, said to defendant, in reply to the notification of his election to continue upon the farm: “We wish you good luck with the place.” The court refused to permit this declaration of the wife to go in evidence. The declaration, as offered, did not bind plaintiff, and was, therefore, incompetent.
The judgment of the District Court is
Affirmed.