#### R. C. RYAN v. W. M. REYNOLDS, COLEMAN FOSTER and H. P. FIELDS.

(Filed 25 November, 1925.)

1. Contracts — Landlord and Tenant — Ejectment — Leases — Re-entry— Possession — Statutes.

Our statute writes into a contract of lease of lands when the lease is silent thereon, a forfeiture of the terms of the lease upon failure of the lessee to pay the rent within ten days after a demand is made by the lessor or his agent for all past due rent, with right of the lessor to enter and dispossess the lessee. C. S., 2343.

2. Statutes — In Pari Materia — Interpretation—Landlord and Tenant.

C. S., 2343, allowing the lessor the right of entry upon the leased premises upon failure of the lessee to pay the rent, etc., and C. S., 2372, are in pari materia, and should be construed together.

3. Landlord and Tenant — Leases — Ejectment — Statutes — Payment— Tender,

Under the provisions of C. S., 2372, the lessee in summary ejectment is given the right to tender or pay into court the amount of rent due under the lease to the time of the beginning of the action, with interest and costs, and upon his so doing, the proceedings will be stayed, and the exception of the lessor that all rents whether due under the terms of the contract or not, should be included to the time of the dismissal of the action, is untenable.

4. Same — Nonsuit—Appeal and Error.

Where there is an appeal from the justice of the peace in ejectment, the jury shall assess all damages of the plaintiff when he is entitled thereto from the time of the unlawful detention to the time of the trial in the Superior Court, and upon the defendant’s tendering the amount sued for and the costs to the time, a judgment as of nonsuit is properly allowed.

5. Same — Separate Contracts — Interpretation.

Where a contract for the lease of land at a specified rent contains a provision giving to the lessee the right to take sand therefrom at a stated price, the lessor in ejectment cannot maintain the position that the lessee should tender or pay for the sand he may thus have used, under the provision of C. S., 2372, as a part of the rental due by him, the contract being construed separately as to the two provisions.

Appeal by plaintiff from Finley, J., September Term, 1925, of For-syth.

Affirmed.

Tbe return of the justice of the peace on appeal to the Superior Court by defendants is as follows: “On 14 July, 1925, at the request of the plaintiff, I issued a summons in his favor and against the defendants, which is herewith sent. Said summons was, on the return day thereof, returned before me at my office; and at the same time and place, the parties personally appeared. The plaintiff complained for possession of *564tbe premises occupied by tbe defendants and fifty dollars for rent from 29 July, 1924, to 29 July, 1925. Tbe defendant denied. . . . Botb parties introduced evidence upon tbe claims as made by bim, and after bearing tbeir proofs and allegations, I render judgment in favor of tbe plaintiff and against tbe defendants, on 1 August, 1925, for $50.00, witb interest on $50.00 from 29 July, 1925, and for $8.00 cost.”

Tbe following judgment was rendered in tbe court below: “Tbis cause coming on to be beard and being beard before bis Honor, T. B. Finley, judge presiding, at tbe September Term, 1925, of tbe Superior Court for Forsytb County, and a jury, and it appearing to bis Honor tbat wben tbe case was called for trial tbe defendants tendered tbe sum of $50.00 and interest, together witb $25.00 to pay tbe costs, and bis Honor further finds it a fact tbat upon tbe close of tbe testimony of tbe plaintiff tbe defendants tendered to tbe plaintiff $140.00, out of which to pay tbe rent due and tbe costs of tbe action. His Honor finds as a fact from tbe evidence given by tbe deputy clerk tbat tbe costs in tbis case are $54.35. His Honor further finds tbat tbis is an appeal from tbe court of a justice of tbe peace, and tbat tbe plaintiff in bis summons demanded tbe possession of tbe premises occupied by tbe defendants and $50.00 rent from 29 July, 1924, to 29 July, 1925, and bis Honor further finds it a fact tbat in tbe magistrate’s returns be set forth tbat tbe plaintiff complained for tbe possession of tbe premises occupied by tbe defendants and $50.00 for rent from 29 July, 1924 to 29 July, 1925. His Honor further finds as a fact, tbat on 24 July, 1925, tbe defendants tendered to tbe plaintiff $25.00 rent, which would be due under tbe contract 29 July, and tbe same was not accepted, but did not tender rent claimed by plaintiff to be then due. His Honor finds as a fact, tbat tbe rent due at tbe beginning of tbis action and tbe rent accruing since tbe beginning of tbis action has been tendered to tbe plaintiff by tbe defendants, together witb interest, and bis Honor further finds as a fact tbat tbis is an action brought to recover tbe possession of demised premises upon a forfeiture for tbe nonpayment of rent, and tbat before judgment, tbe defendants tendered all rent due witb interest, together witb tbe costs which tender was made during tbe trial in tbe Superior Court. His Honor further finds tbat tbe plaintiff refused tbe tender made by tbe defendants and tbe motion was allowed. It is further found as a fact tbat on tbe appeal to tbe Superior Court and on tbe trial in tbe Superior Court tbe plaintiff demanded and moved tbat damages and all rent be assessed and found tbat was due as found up to tbe trial in tbe Superior Court. Now, therefore, it is ordered, adjudged and decreed tbat all further proceedings1 in tbis case shall cease.”

At tbe close of tbe testimony for tbe plaintiff, tbe defendants moved for judgment as of nonsuit, and it appearing to tbe court tbat tbe de*565fendants have made a tender of all rents and cost due up to the present time, motion allowed. Plaintiff moves that all rent and damages up until the time of the trial be assessed in the trial of this cause. Motion denied.

■Judgment was signed as appears of record. Plaintiff assigned the following as error and appealed to the Supreme Court: “(1) For that his Honor erred in allowing the motion for judgment as of nonsuit; (2) for that his Honor erred in overruling the plaintiff’s motion that all rent and damages up until the present time be assessed in the trial of this cause.”

Other relevant facts will be set forth in the opinion.

John 0. Wallace and Raymond G. ParTcer for plaintiff.

Parrish & Deal for defendants.

Clarkson, J.

From an examination of the lease in controversy, made by plaintiff, there is no clause giving him a right of reentry for the nonpayment of rent. The lease is for 5 years with renewal privilege or right for 5 additional years, rent $25.00, payable semiannually in advance. Simmons v. Jarman, 122 N. C., p. 195.

It is laid down in House v. Parker, 181 N. C., 42, and accepted law in this jurisdiction: “It is true the contract contains no express power of sale; but the general laws of the State in force at the time of its execution and performance enter into and become as much a part of the contract as if they were expressly referred to or incorporated in its terms. O’Kelley v. Williams, 84 N. C., 281; Graves v. Howard, 159 N. C., 594, and Van Huffman v. Quincy, 4 Wallace, 552.” Plaintiff relies on the statutory right as follows:

C. S., 2343. “In all verbal or written leases of real property of any kind in which is fixed a definite time for the payment of the rent reserved, therein, there shall be implied a forfeiture of the term upon failure to pay the rent within ten days after a demand is made by the lessor or his agent on said lessee for all past due rent, and the lessor may forthwith enter and dispossess the tenant without having declared such forfeiture or reserved the right of reentry in the lease.”

The statute was passed to protect landlords who made verbal or written leases and omitted in their contracts to make provision for reentry on nonpayment of rent when due. The consequence was that often an insolvent lessee would avoid payment of rent, refuse to vacate and stay on until his term expired. In the present case suit was commenced before the justice of the peace for $50.00 rent and a summary action of ejectment against defendants. The justice of the peace gave judgment for the $50.00 and cost and his returns show that the action before him was for this amount and possession of the premises.

*566The defendants, through, their attorneys, before the trial of the case in the Superior Court on appeal, made the following motion: “Now, if your Honor pleases, we tender this motion: The defendants herein pursuant to and by virtue of section 2372 of the Consolidated Statutes, do hereby tender in cash the sum of $50.00, the rent which the plaintiff claims to be due, and do hereby tender $50.00 as costs, or so much thereof as may be necessary to pay the costs of this action, and prays that further action may cease. The plaintiff declined to accept the tender, as above stated. The defendants, through counsel, presented to the court the sum of $75.00 pursuant to the tender.”-

C. S., 2372, is as follows: “If, in any action brought to recover the possession of demised premises upon a forfeiture for the nonpayment of rent, the tenant, before judgment given in such action, pays or tenders the rent due and the costs of the action, all further proceedings in such action shall cease. If the plaintiff further prosecutes his action, and the defendant pays into court for the use of the plaintiff a sum equal to that which shall be found to be due, and the costs, to the time of such payment, or to the time of a tender and refusal, if one has occurred, the defendant shall recover from the plaintiff all subsequent costs; the plaintiff shall be allowed to receive the sum paid into court for his use, and the proceedings shall be stayed.”

The court overruled the defendants’ motion for the time being and heard the evidence. At the conclusion of the evidence, the court below allowed the motion of nonsuit and signed the judgment as above set forth. The action was tried out on claim set forth in the justice of the peace’s return — $50.00 rent and possession of the premises leased.

C. S., 2372, was passed in the interest of the tenant. A landlord could bring an action after demand as required by the statute, when each installment of rent was due. The tenant had to pay the rent and cost before judgment or get out. This statute was to protect the tenant from hasty eviction, at the same time the landlord obtained his rent and cost. The two statutes construed together are just and equitable. The forfeiture which gives right of eviction in the present lease is made so purely by statute. The parties could have agreed in the lease upon strict terms as in Midimis v. Murrell, 189 N. C., 740. There the lessor and lessee agreed that the lessor had the option to declare the lease “null and void” upon failure to pay the rent. In the instant case the statutory forfeiture is saved by a statutory right to pay rent sued for and cost before judgment. The two statutes must be construed together — in pari materia.

C. S., 2371, is as follows: “On appeal to the Superior Court, the jury trying the issue joined shall assess the damages of the plaintiff for the detention of his possession to the time of the trial in that court, and *567judgment for tbe rent in arrear and for tbe damages assessed may, on motion, be rendered against tbe sureties to tbe appeal.”

Tbe present suit was for one year’s rent — $50.00—and possession of tbe property. Tbe rent due since tbis action was instituted — $25.00— was tendered and refused by tbe plaintiff. Tbe court below found tbis as a fact, but upon tbe payment of tbe $50.00 sued for, $25.00 rent due since action waS instituted, and cost, tbe court below allowed defendant’s motion of nonsuit. Plaintiff in bis brief says: “At tbe trial in tbe Superior Court tbe defendant tendered rent and cost due, except tbat wbicb was due for sand removed, wbicb was not tendered.” Bunn v. Patrick, 156 N. C., 248. There was a controversy in tbe beginning over tbe $50.00 by Coleman Foster, wbo was tbe assignee of Reynolds & Fields, and plaintiff sued all three — Foster in tbe beginning claiming bis assignors were liable.

Tbe next contention of plaintiff was tbat, under C. S., 2371, supra, tbe amount due for sand removed should be assessed up to tbe time of trial as rent or damages. Tbat 3,000 to 5,000 yards of sand were removed and not paid for, and tbis was certainly rent or damages.

Tbe language of tbe lease, clause 2d, is as follows:

“Tbe annual rent during tbe term shall be $50.00 payable in advance, $25.00 semiannually.” Tbe 3d clause gives to tbe lessees, their heirs and assigns, tbe privilege to remove sand from tbe bed of tbe creek and to pay plaintiff 10c per yard for tbe sand taken and carried away. There is nothing in tbe language of tbe lease or otherwise tbat indicates tbat tbis 10c a yard is rent. It is simply an agreement between tbe parties to pay for sand as taken at a fixed price. Defendants need not take tbe sand, but “tbe privilege” is given. When taken, plaintiff has a right to an action for tbe price stipulated. Tbis Court cannot make a lease, its only power is to construe one made.

In C. S., 2371, supra, tbe language clearly says tbe jury shall assess damages for tbe detention of bis possession. Here tbe amount fixed is tbe rent and tbe term has not expired. Tbe plaintiff cannot “tack on” to tbe rent contract tbe sand agreement, although both are in tbe same lease. Tbe language of tbe lease does not permit tbis to be done.

It was contended by defendants on tbe argument tbat, under tbe contract wbicb was for 5 years with privilege of renewal for 5 years; tbat tbe defendants have made very valuable improvements on tbe land and a “strict forfeiture” would confiscate these improvements. Both statutes use tbe word “forfeiture” and O. S., 2372, gives tbe remedy to tbe tenant upon forfeiture for tbe nonpayment of rent. The statute declares tbe meaning — that tenant shall pay all back rent, etc., and cost before judgment. From a careful review of tbe record, tbe judgment of tbe court below is

Affirmed.