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brought on a writing sealed", whereby the defendant's testator acknowledged himself to be accountable to the plaintiff for all such monies as should be charged by plaintiff on A. to be paid to B.; and alleged, that he the plaintiff charged a certain sum of money on A. to be paid to B., and that the defendant's testator had not paid it; it was objected, that covenant did not lie, and that the proper form of action was an action of account; but it was holden, that covenant would lie in this case, and on any words, in a deed purporting to be an agreement for the payment of money. So in a case of a lease for years rendering renty; it was adjudged by the court, (absente, Holt, C. J.) that the render made a covenant. So where covenant was brought against executrix of assignee of lessee for yearsz by indenture, for rent arrear in the time of the executrix, upon the words yielding and paying; it was holden, that the action would lie; and the opinion of the court was, that the words “yielding and paying,” (7) in the indenture, made an express covenant, and were not a bare covenant in law. So in covenant against the assignee of lessee for years, upon an indenturea, whereby plaintiff demised to the lessee a house, excepting a room, with free liberty of passage, through other rooms of the house unto the room excepted. Lessee assigned the lease; and the assignee stopped the passage, whereupon plaintiff brought this action, declaring for a breach of covenant. Resolved, by the court, that this exception amounted to a reservation, upon which covenant would lie; and they compared it to the preceding
x Brice v. Carre and others, Executors
of J. S. 1. Lev. 47. y Giles v. Hooper, Carth. 135.
2 Porter v. Sweetnam, Sty. 406, 431.
Hellier v. Casbard, 1 Sidf. 266, S. P. a Bush v. Coles, Carth. 232, Salk. 196.
(7) These words, “yielding and paying,” have sometimes been considered as sufficient to raise a covenant by implication of law only. See a dictum to this effect, 1 Sidf. 447; and Kenyon, C. J. so considered them in Webb v. Russel, 3 T. R. 402. The same opinion is adopted by Serjeant Williams in his notes to the first volume of Saunders, p. 241, b. note 5. But in addition to the authorities in the text, it may be observed, that in Rolle's Abridgment, Covenant (C.) the title of which is, What words will make an express covenant?” in pl. 10, p. 519, this case is put as an instance of an express covenant : • If a man lease land for years, reserving a rent, an action of covenant lies for the non-payment of the rent ; for the reddendo of the rent is an agreement for the payment of the rent, which will make a covenant."
case of rent reserved, where covenant will lie upon the words of reservation, without any express words of covenant. But it must be clear, that the words are meant to operate as an agreement, and not merely as words of qualification or condition. For where an assignee took from a lessee, leasehold premises by indenture, indorsed on the deed, “subject to the payment of the yearly rent and to the performance of the covenants in the lease;" it was holdenb, that these words did not constitute an agreement for the payment of rent, &c. during the term, nor did they render him liable to the lessee for rent which had become due, and the lessee had been obliged to pay to the lessor, after the assignee had assigned over the premises; for the words were words of qualification, and not of contract.
Where the law creates a duty or charge, and the party is disabled from performing it, without any default on his part, and has not any remedy over, the law will excuse him ; but where the party, by his own contract, imposes on himself a duty or charge, he is bound to make it good, notwithstanding inevitable accident; because he might have provided against it by his own contract (8). A lease for years was made by indentured, of a meadow bounded on one side by a river, and the lessee covenanted to sustain and repair the banks, to prevent the water from overflowing the meadow, upon pain of forfeiture of a sum of money; afterwards, by a sudden and violent food, the banks were destroyed, and, by the opinion of Fitzherbert and Shelley, Js. “the law is, that the lessee is excused from the penalty, because it is the act of God, which
b Wolveridge v. Steward, in error, c Paradine v. Jane, Aleyn, 27.
Exchr. Chr. 3 Tyrw. 657, reversing d Dyer, 33. a.
(8) This rule, extracted from the case of Paradine v. Jane, has been recognised in many subsequent cases *; and in Beale v. Thompson, 3 Bos. and Pul. 420. Chambre, J. speaking of this case, says, “the court took a rational distinction, that where an obligation is imposed by rule of law, and there is not any express covenant, the law introduces a reasonable exception, viz. that an act of irresistible violence will excuse the party; but if a party enter into an absolute contract, without any qualification or exception, and receives from the party with whom he contracts, the consideration for such engagement, he must abide by the contract, and either do the act, or pay damages, his liability arising from his own direct and positive undertaking.”
* Atkinson v. Ritchie, 10 East, 533.
cannot be resisted; but still he is bound to make and repair the thing in convenient time, because of his own covenant.” So where the assignee of a reversion brought covenant against lessee of a house for non-payment of a year's rente; defendant prayed oyer of the lease, which contained a covenant on the part of the defendant to repair the house during the term, except it should be destroyed by fire, and then pleaded, that before any part of the rent in question became due, the premises were destroyed by fire, against the will of defendant, and were not rebuilt by the lessor or the plaintiff; and that the defendant did not occupy the premises during the year for which the rent was claimed. On demurrer, it was holden, on the authority of Paradine v. Jane, Aleyn, 27. that the defendant was bound by his express covenant to pay the rent during the term.
The doctrine laid down in the preceding case having been alluded to in argument, in Cutter v. Powell, 6 T. R. 323, Lord Kenyon, C. J. said, “that it must be taken with some qualification ; for where an action was brought for rent after the house was burned down, and the tenant applied to the Court of Chancery for an injunction; Lord Northington said, “ that if the tenant would give up his lease, he should not be bound to pay the rent.” Probably the case here alluded to by Lord Kenyon was the first of the following cases :
The plaintiffs were tenants to the defendants of a house, &c. by lease, in which there was a covenant by the plaintiffs to do all repairs, accident by fire only excepted: the defendants had insured the buildings, which were burned down ; the insurers paid the loss: the defendants declined re-building, and brought an action of covenant for the rent accrued due after the accident had happened. The plaintiffs filed a bill in the Court of Chancery for an injunction, and obtained the common injunction: the defendants, on coming in of the answer, moved to dissolve the injunction, they having by their answer offered to remit the rent, upon a surrender being made of the lease, which the plaintiffs declined, as the lease was beneficial. The plaintiffs had pleaded at law the truth of the case in bạr of the action: and on a demurrer to this plea, the plaintiffs were advised not to argue the demurrer, but to apply to a court of equity. On showing cause against dissolving the injunction, Lord Northington, Chr. inclined to think, that the matter pleaded was a good defence at law; but that, in all events, a court of equity ought to restrain this action, until the house, &c., were rebuilt; and therefore continued the injunction.
e Munk v. Cooper, Str. 763. 2 Lord g Camden and another v. Morton and Raym. 1477. S. C.
another, in Canc. E. 4 G. 3. MSS. f See Belfour v. Weston, 1 T. R. 310. 2 Rep. temp. Ld. Chan. Northington, S. P.
p. 219. S. C.
Bill brought for a specific performance of a covenanth for quiet enjoyment, contained in a lease of certain houses demised by defendant to plaintiff, and to have 500l. laid out in rebuilding the houses, (which had been burned down by accident since the execution of the lease,) and for an injunction to restrain defendant from proceeding at law. N. The 5001. had been received by the defendant from the insurance-office on account of the insurance of these houses. Defendant, by his answer, offered to accept a surrender of the lease. Lord Northington, Ch.-" There is not any covenant from the landlord to rebuild. A court of equity can decree a specific performance in those cases only, where clear directions can be given in what manner, and when the act is to be performed. It would be most arbitrary for me to decree a rebuilding, in a case where there is not any covenant for the rebuilding. All that can be required from a court of equity is, in a case like this, when an action shall be brought for rent, to order an injunction, until the houses are rebuilt, or the lease delivered up. In the present case, there has not been any action brought for the rent, and the defendant has offered to accept a surrender of the lease, which is all the relief the plaintiff is entitled to.” There being a valuable wharf on the demised estate, the plaintiff declined surrendering his lease; the bill therefore was dismissed with costs (9).
h Brown v. Quilter, in Canc. 1 June,
1764, MSS. Amb. 619. S. C. But see
Hare v. Groves, 3 Anstr. 687, and
(9) Ejectment by tenant against landlord to recover the possession of some houses which had been burned down during the term, and had been rebuilt by the landlord. In the lease there was an express covenant, on the part of the tenant, to pay the rent, but he had not paid any after the time of the fire. Lord Mansfield, C. J. said, the consequence of the houses being burned down was, that the tenant was not obliged to rebuild, but the tenant was obliged to pay the rent during the whole term. The houses having been burned down four years before action brought, and the rent not having been paid during that period, he left it to the jury to consider whether it was not to be presumed that the tenant had abandoned the lease at the time of the fire; and accordingly the jury found a verdict for the defendant. Pindar v. Ainsley, Middlesex Sittings after M. T. 1767, cited by Buller, J. I T. R. 312.
But where there are no special circumstances, the general rule prevails, that equity follows the law; and a court of equity will not restrain a party from proceeding at law for rent arrear after the premises are destroyed by fire; the agreement for payment of the rent being without restrictioni.The lessee of a house, on a general covenant to repair during the term, is bound to rebuild, in case the house be consumed by an accidental firek (10). If a lessor covenant! that he will, in case the messuage, shop, and building demised be burnt down, rebuild and replace the same, in the same state they were in before the fire, he is only bound to rebuild what he let, and not any additional parts, which may have been erected by the lessee. On a covenant to erect a bridge in a substantial manner, and to uphold and keep in complete repair for a certain time; although the bridge be broken down by an extraordinary flood, yet the party covenanting is bound to repairm. See Shubrick v. Salmon, 3 Burr. 1637, to the same effect.
Of Express Covenants running with the Land.—Express covenants, which run with the land, entered into by lessee for years, for himself, his executors, administrators, and assigns, are binding on the lessee and his personal representative, (having assets,) during the continuance of the term; although such covenants are broken, after an assignment of the term by the lessee, and after an acceptance of rent from the assignee by the lessor, or grantee of the reversion; and there is
i Hare v. Groves, 3 Anstruther, 687. 1 Loader v. Kemp, 2 C. & P. 375, Best,
recognized and acted upon in Holtz- C. J. apffel v. Baker, 18 Ves. 115.
m Brecknock Company v. Pritchard, 6 k E. of Chesterfield v. D. of Bolton, T.R. 750.
Com. R. 627. Bullock v. Dommitt, 6 T. R. 650. S. P.
(10) In many cases an exception of accidents by fire or tempest is introduced into leases for the protection of lessees.
It appears, from the cases of Monk v. Cooper, and Hare v. Groves, 3 Anstr. 687, that this exception should be introduced into the covenant for payment of the rent, as well as into the covenant for repairs, in order to exempt the lessee from the obligation of paying rent as well as rebuilding, in case the house should be destroyed by fire or tempest. In Walton v. Waterhouse, 2 Saund. 420, covenant was brought against lessee of a house for not repairing; defendant pleaded that the house had been destroyed by fire, but in convenient time after had been rebuilt. Plaintiff demurred specially, because defendant did not shew by whom the dwelling-house was rebuilt.--- Judgment for plaintiff.