I am unable to concur with the views expressed by the majority, and respectfully dissent.
The majority opinion recognizes that the notice of election and forfeiture, whereby the appellee terminated the lease and took immediate possession of the premises, in legal effect *Page 540 accomplished what its terms expressed, namely, a forfeiture was effected and the lease was terminated by the service of such notice. I agree with the result so far reached. What I am unable to agree with is the holding that the landlord is entitled to possession, after terminating the lease, and is also entitled to recover the rent for the balance of the term.
When a lease is executed, the landlord, by the lease, gives the tenant the exclusive right to possession and enjoyment of the premises. In Clark v. Strohbeen, 190 Iowa 989, 995, 181 N.W. 430, 433, we state: "The landlord becomes a trespasser if he enters upon the leased premises, and without the consent of the tenant appropriates possession to himself before the expiration of the term." It is the right of possession to the exclusion of the landlord which constitutes the basis for the rent being earned. In the case of Wilson v. Wilson, 220 Iowa 878, 882, 263 N.W. 830, 832, we state: "It is well settled that in the absence of a contrary agreement, rental is neither earned nor payable until the expiration of the term." To the same effect, see Ingram v. Dailey, 123 Iowa 188, 192, 98 N.W. 627. We have also recognized that a tenancy ends at the time fixed in the notice to quit. Fillman v. Sherwood, 192 Iowa 1161, 1164, 184 N.W. 287. The effect of the majority opinion is to hold that where rent is payable in advance, and by reason thereof becomes due before it is earned, the landlord can recover possession of the premises for nonpayment of the rent and can also recover the rent that has not been earned. With this I cannot agree.
The rule announced by the majority is unjust and unfair because it disregards the principle recognized in Wilson v. Wilson, supra, that rental is not fully earned until the expiration of the term. The landlord is entitled to possession of the premises or rent therefor. If he takes possession during the term by evicting the tenant, he is entitled to the rent that is earned up to the time of eviction. I do not think that he is entitled to rent that is not earned at that time. He is entitled to his rent or the possession, but not both. *Page 541
In 16 R.C.L. 948, it is stated: "It is the well settled general rule that where the eviction by a landlord is of the whole premises this will relieve the tenant from liability for future accruing rents." "Accrued" is often interpreted as meaning "due and payable", and, where rent is due and payable in advance, it is considered as accrued before it is earned. If the eviction occurs after the rent is due and payable, but before it has been earned, there are three rules which have been applied in the various jurisdictions.
In 36 C.J. 317, the three rules are stated as follows: "Where the rent is due and payable in advance at the beginning of each month, quarter, or year during the term, there is a conflict of authority as to the effect of the eviction occurring during such period. In some jurisdictions it is held that the tenant's liability for the rent is not discharged by an eviction occurring after the rent is due, unless the parties agree to the contrary. According to other authorities, the tenant's liability for the rent for such period is discharged by an eviction during the period, and the tenant is not liable for the period during which he occupies the premises, unless he expressly contracts to that effect. In other jurisdictions it is held that the obligation to pay rent ceases at the time of eviction so that the rent will be apportioned according to the period that the tenant retains possession."
It seems to me that the first rule, which the majority opinion applies herein, is harsh and unfair to the tenant. The second rule appears to be harsh and unfair to the landlord. The third rule seems to me to be just and fair to both. I would apply it here.
In the case of Conner v. Warner, 52 Okla. 630, 633, 152 P. 1116, 1117, the judgment appealed from is quoted in the opinion as follows:
"`The court finds that the plaintiff is the assignee of the lessors' interest under a certain lease of real property, described in plaintiff's petition, and the defendants are the lessee and sureties of said lessee under said lease; that on the 20th *Page 542 day of August, 1912, there became due the plaintiff from the defendants an installment of rent, amounting to $550; that no part of such sum has been paid; that thereafter, on the 26th day of August, 1912, the plaintiff's assignors, the lessors under said lease, declared a forfeiture for the nonpayment of rent, pursuant to the terms thereof, and immediately took possession of said premises. The court finds that because of said forfeiture, the plaintiff is not entitled to recover the full amount of the installment due, on the 20th day of August, 1912, but is entitled to apportion the same for the time said lessee actually occupied said premises * * *.'"
The Oklahoma court affirmed the judgment. It seems to me that the situation which was there presented to that court is directly analogous to the situation that is presented to us herein. The theory behind the decision, as I read it, is that, where rent is payable in advance, it is payable before it is earned. If the landlord evicts the tenant for failure to pay the rent after it is due, but before it is earned, and takes possession of the premises for the balance of the term, he can only recover from the tenant the proportionate share of the rent which was earned at the time of the eviction. By taking possession, he elects between the right to possession and his right to the rent. He is denied both, but is accorded the right to either. His choice determines the relief to be accorded him.
In this case, the term of the lease was from May 1, 1937, to October 1, 1937. The rent was $3,100 for the term. $1,600 of this rent was due and payable by May 1st and was then paid. $500 was due on June 1st, and was then paid. Two thirds of the rent for the term of five months was due and payable within one month after the term commenced. The balance of the rent was due and payable in July. On July 16th, the landlord forfeited the lease, terminated the tenancy for failure to pay the rent promptly when it was due, and recovered possession. At that time, the tenancy was only half completed. There is evidence in the record to show that the value of the balance of the term at least equalled the amount of rent delinquent *Page 543 when the lease was terminated. Such rent was, therefore, due in advance. It was due before it was earned. The appellants, as the tenants, do not question their obligation to pay all rent that was earned when the tenancy was terminated. What they do challenge is their obligation to pay rent that was not earned. Their position is that the landlord, by terminating the lease and recovering possession, elected to take possession in preference to the unearned rent. I think this position should have been sustained. In the case of Reiger v. Turley, 151 Iowa 491, 501, 131 N.W. 866, 870, we state: "The law abhors forfeitures, and will give them effect with reluctance, and only when the right thereto has been clearly contracted for, * * *." This principle should be applied here.
Examination of the cases, cited in support of the three rules reviewed in the foregoing quotation from 36 C.J. 317, demonstrates that the cases which support the third rule are fewer in number than the cases which support the first rule. However, courts have often recognized that mere superiority in the number of decisions does not necessarily determine the sound rule, where a division of authority exists. From the briefs, and from an examination of our decisions, it appears that this court has not heretofore decided which rule should be applied to a situation such as presented by the record herein. We now have to choose. It seems to me that our choice would be better made from considerations of fundamental principles of reason and justice than from mere numerical weight among the decisions. While the rule announced by the majority opinion seems to be supported by the greater number of decisions, I would prefer a rule which seems to be more in accord with fundamental considerations of reason and justice. I would reverse.
BLISS, J., joins in this dissent. *Page 544