Page:Harvard Law Review Volume 9.djvu/157

129 THE RISK OF LOSS. 1 29 to pay rent when the leased premises are destroyed, — a rule from which it was decided only after some conflict that equity would not relieve, — to find that in New York by statute,^ and in South Caro- lina by judicial decisions,^ a tenant, the actual owner of a legal estate, is relieved from liability by substantial destruction of the premises, and that almost universally in this country total destruc- tion of the leased premises terminates the tenant's liability, and yet to find frequently, in these same jurisdictions, that one who has agreed to buy real estate in the future, though perhaps discharged at law by accidental injury to the property, is regarded by a court of equity as already having such an ownership in the property that he must pay for it. The facts and opinion of the court in Hugue- nin V. Courtenay^ are suggestive in this connection. The court says, in substance, if a tenant is relieved by destruction of the leased premises, he surely cannot be liable if the premises are de- stroyed after an agreement to lease in the future ; and a lease is a lease though it be for 999 years and whatever the rent ; but if, in- stead of a lease substantially equivalent to a fee, the subject mat- ter of the agreement were in fact a fee, the seller would be entitled to the price. Doubtless the reason why a tenant is relieved to the extent that he is in case of accidental injury or destruction to the leased prem- ises, is because the parties to a lease are apt to regard it rather as a contract than as a conveyance. " A lease is in one sense a running rather than a completed contract. It is an agreement for a con- tinuous interchange of values between landlord and tenant, rather than a completed contract." * If this were granted it would only make a lease analogous to a contract for the sale of real estate, and if the tenant is relieved in the former case, the vendee should be in the latter. Yet the same court which exhibited such tenderness for the lessee as thus to construe a lease has twice decided that a vendee is liable to pay to the vendor the contract price for land 1 Chap. 345 of Laws of i860 provides " the lessees or occupants of any building which shall, without any fault or neglect on their part, be destroyed or be so injured by the ele- ments or any other cause as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof after such destruction or in- jury, unless otherwise expressly provided by written agreement or covenant; and the lessees or occupants may thereupon quit and surrender possession of the leasehold premises and of the land so leased or occupied." For the construction of this statute, see Suydam v. Jackson, 54 N. Y. 450; Butler v. Kidder, 87 N. Y. 98; Edwards « McLean, 122 N. Y. 302. 2 Ripley V. Wightman, 4 McC. 447 ; Coogan v. Parker, 2 S. C. 255. 8 21 S. C. 403.
 * Whitaker v. Hawley, 25 Kan. 674, 687, per Brewer, J.