New Mexico Motor Corp. v. Bliss

Citations

• 27 N.M. 304
• 201 P. 105

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. A court of equity, even in the absence of special circumstances of fraud, accident, or mistake, may relieve against a forfeiture 'incurred by the breach of a covenant to pay rent, on the payment or tender of all arrears of rent and interest by a defaulting lessee. P. 306</p> <p>2. While a court of equity has power to relieve against a forfeiture for nonpayment of rent, even though the contract or lease provides for such forfeiture, it has no power to relieve against forfeiture imposed by statutes. P. 307</p> <p>3. The effect of Code 1915, § 2384, which gives a right of action in forcible entry and unlawful detainer “when the tenant fails to pay the rent at the time stipulated for payment,” and section 2386, which provides for 3 days’ notice to quit-before suit can be brought, is to work a statutory forfeiture, but the forfeiture does not become effective until the expiration of the 3 days after the notice, during which time the tenant can pay the rent and avoid the forfeiture. P. 307</p> <p>4. The 3 days’ notice to quit where the rent is not paid was designed to take the place of the common-law demand, and to provide a short time within which the tenant might pay the rent, and thus save the forfeiture. P. 308</p> <p>5. Where the statute provides for the forfeiture of the lease by giving 3 days’ notice to quit for nonpayment of the rent, and the landlord, instead of - giving the statutory 3 days’ notice, gives a 10-day notice to quit, the tenant has the 10 days in which to tender the rent and avoid forfeiture. P. 310</p> <p>6. Whenever the judgment, if left unreversed, will preclude the party against whom it stands as to a fact vital to his rights, though the judgment, if affirmed, may not be directly enforceable by reason of lapse of time or change of circumstances pending appeal, a writ of error will not be dismissed as involving only a moot question. P. 310</p>