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Page:Harvard Law Review Volume 2.djvu/113

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If, for instance, there has been delay in the payment of rent or taxes, and the tenant pays in full with interest or tenders payment after the eject- ment suit is brought, equity will protect him against the landlord. {Giles v. Austin^ 62 N. Y. 486). On the other hand, it has been decided that for breach of covenant to keep the premises insured equity can afford no relief. {Green v. Bridges^ 4 Sim. 96).* Where the covenant is to repair, the law is not very well settled. In Brcuebridge v. Buckley y 2 Price, 200, it was held (with a dissenting opinion) that under the circumstances of that case equity could not interfere.

The principle underlying these decisions seems to be, not that a breach has occurred and the landlord has not been injured, nor that damages have been given, but that the contract has in fact never been broken. In other words, where the parties can be restored to the position they held at the time of the breach, equity will eliminate the element of time. Now, in case of a covenant to keep the premises insured, it is. plain that equity cannot relieve. Nothing can put the parties in the position they occupied before the breach. The risk has been incurred, and no subsequent insurance could guard against a prior risk. This is equally true when the lessee having covenanted to insure the premises in the lessor's name insures them in his own, — even when this occurs through no fault of the lessee, but by the unauthorized act of his agent {Green v. Bridges^ supra, )

The covenant to repair stands on a peculiar footing. It is evident, on the one hand, that in every case all possible claims could not be satisfied by a distinct payment of money, and yet, very often, if the premises are repaired they are put in exactly the same condition, or even better con- dition, than if the repairs had been made at the proper time. The general rule of equity does not seem, however, to allow relief in this case. The covenant was for the doing of a certain thing ; that thing has not been done, and equity cannot superintend the performance of it. Where the breach of condition consists in the non-payment of money the parties can, by the very decree of the court, be put in the same position as at the time of the breach.

So where the making of a settlement was a condition annexed to a leg- acy, and the settlement was not made within the specified time, although through no fault of the legatee, it was held that equity could not interfere. {In re Hodges'* Legacy, L. R. 16 Eq. 92.)

There e.xists a special ground for the interference of equity whenever the tenant has been led by the acts of his landlord to believe that a condition would not be strictly enforced. When the tenant has been accustomed to pay his rent on the tenth of the month, though due on the first, the land- lord cannot, without warning, demand the rent on the first, and turn the tenant out for not complying. This is called the relief of Equity against surprises.

I But see contra^ Mactur v. Osborne ^ 15 N. £. Rep. 641 (Mass.).