{ "id": 8842490, "name": "HEIGHES v. PORTERFIELD, et al.", "name_abbreviation": "Heighes v. Porterfield", "decision_date": "1923-01", "docket_number": "No. 2759", "first_page": "445", "last_page": "448", "citations": [ { "type": "official", "cite": "28 N.M. 445" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "35 L. R. A. (N. S.) 1123", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "pin_cites": [ { "page": "1137" } ], "opinion_index": 0 }, { "cite": "79 Atl. 826", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "32 R. I. 326", "category": "reporters:state", "reporter": "R.I.", "case_ids": [ 4981563 ], "opinion_index": 0, "case_paths": [ "/ri/32/0326-01" ] }, { "cite": "13 L. R. A. (N. S.) 398", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 } ], "analysis": { "cardinality": 378, "char_count": 6122, "ocr_confidence": 0.542, "pagerank": { "raw": 9.212842755703095e-08, "percentile": 0.5099932467105225 }, "sha256": "8446d45514d9e21f1657210339a18ac24b421393773a8b06267e3009f35228b1", "simhash": "1:b374638039bde42c", "word_count": 1042 }, "last_updated": "2023-07-14T18:04:11.800263+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BRATTON and BOTTS, J. J., concur." ], "parties": [ "HEIGHES v. PORTERFIELD, et al." ], "opinions": [ { "text": "OPINION OP.THE COURT\nPARKER, C. J.\nAppellant and appellees entered, into a written lease of certain premises in the city of Albuquerque at a stipulated monthly rental, payable monthly in advance. The complaint alleges that, after appellees had paid two monthly rental payments, and when there was due and unpaid one monthly rental for the succeeding month the appellees removed from the premises and advised the appellant that they would refuse further to occupy the same, or pay the rental therefor, which was against appellant\u2019s protest and without his approval or request. The complaint then alleged that appellees then abandoned the premises, and futher alleged:\n\u201cThat plaintiff, in order to protect himself and his said property and premises, the subject of the said lease, was obliged to take posession of the said place and now has and holds posession thereof, all because of the acts of defendants in voiding, repudiating, and breaking their said contract as aforesaid.\u201d\nThe action was to recover the rent for the entire term of the lease. Defendants filed a demurrer to the complaint, on the ground that it disclosed that the plaintiff had taken posession of the demised premises and therefore had \u201cwaived and relinquished and .abandoned and canceled all right and interest he had under the said lease.\u201d The trial\" court sustained the demurrer and, appellant electing to stand upon his complaint and refusing to plead further, dismissed the case, from which judgment this appeal was taken.\nThat the complaint is faulty and somewhat ambiguous is clearly apparent. We see no reason for inserting the allegation as t\u00f3 taking possession of the premises at all, in the complaint, and, when the appellant bad opportunity, as be did, to clarify bis allegations, it does seem that be might well bave improved bis opportunity in that respect. We deem the pleading, however, not to be open to successful attack by demurrer. The general proposition is that when a tenant abandons the leased premises and declares that be will no longer be bound by the Tease, or pay the stipulated rental, the landlord m#y re-enter and terminate the contract of lease, in which event be cannot bold the tenant for future rental, or be may let the premises remain idle and recover the rent for the whole term. He may also enter the prem \u2022 ises solely to care for them without affecting the tenant\u2019s liability for future rent. 16 R. C. L. \u201cLandlord and Tenant,\u201d \u00a7\u00a7 481 and 482. In 2 Tiffany, Landlord and Tenant, \u00a7 1355, it is said:\n\u201cA question frequently arises as to what constitutes a resumption of possession by the landlord, on the abandonment of the premises by the tenant, sufficient to effect a surrender. It may be necessary for the landlord to assume some measure of control over the property to protect it from injury, or he may desire to utilize it in order to recoup himself for loss of the stipulated rent, and yet in neither of these cases does he usually desire to preclude himself from asserting a personal liability on the covenant for the payment of rent. The fact that the landlord enters and cares for the premises after the tenant\u2019s abandonment is not regarded as showing a resumption of exclusive possession, effecting a surrender. * * * The question is whether the possession taken by him is of an exclusive character, with the apparent intention of occupying and controlling the premises as his own, to the exclusion of the tenant, in case the latter desires to return, and this is ordinarly a question of fact.\u201d\nIn the note to Higgins v. Street, 13 L. R. A. (N. S.) 398, it is said that, if the landlord takes possession to care for the premises, or rerent them in behalf of the tenant or for some other purpose that is not inconsistent with the theory that be retakes possession in behalf of the tenant and for bis benefit, the tenant remains liable for the agreed rental for the unexpired term. Tbe same case is reported in 14 Arm. Cas. 1088, where numerous other authorities are collected. In Smith v. Hunt, 32 R. I. 326, 79 Atl. 826, 35 L. R. A. (N. S.) 1123, 1137, Ann. Cas. 1912D, 971, it is said.\n\u201cThe relation of landlord and tenant cannot be determined except by the expiration of the lease, where there is a lease for a fixed term, * * * except by the surrender of the premises by the tenant and the acceptance of such surrender by the landlord. Whether or not there has been such * * * surrender is to be determined by the intention of the parties. This intention is to be gathered by their acts and words.\"\nViewed in. the light of the foregoing considerations, it is apparent that the appellant\u2019s allegation as to his taking possession of the premises upon the abandonment thereof by the appellees will not bear the construction put upon it by the appellees in putting forward their demurrer to the complaint. Appellant\u2019s allegation is to the effect that the abandonment was against his will and protest, and that he took possession of the property, for the purpose merely of pro-' tecting the same, and that, therefore, he did not take such exclusive possession as would relieve the tenant of payment of the rentals as provided in the contract.\nIt follows from all of the foregoing that there is error in the judgment, and that it should be reversed and the cause remanded, with directions to overrule the demurrer and to proceed further in accordance herewith, and it is so ordered.\nBRATTON and BOTTS, J. J., concur.", "type": "majority", "author": "PARKER, C. J." } ], "attorneys": [ "Katherine B. Mabry and Thos. J. Mabry, both of Albuquerque, for appellant'.", "Heacock & Grigsby, of Albuquerque, for appellees." ], "corrections": "", "head_matter": "No. 2759.\nHEIGHES v. PORTERFIELD, et al.\nSYLLABUS BY THE COURT\nTaking posession of the leased premises by the landlord, merely for the purpose of protecting the property, upon the abandonment thereof by the tenant, does not constitute an acceptance of the surrender of the lease by the tenant.\nAppeal from District Court, Bernalillo County; Hickey, Judge.\nAction by Vm. B. Heighes against Joseph Porter-field and another. From an order sustaining a demurrer to the complaint and dismissing the cause, plaintiff appeals.\nReversed and remanded, with directions.\nKatherine B. Mabry and Thos. J. Mabry, both of Albuquerque, for appellant'.\nHeacock & Grigsby, of Albuquerque, for appellees." }, "file_name": "0445-01", "first_page_order": 471, "last_page_order": 474 }