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This intendment, viz. that the title of the party evicting was derived from the plaintiff, may be precluded by averring, (if the facts of the case warrant such an averment) that the person evicting entered by lawful title, which accrued to him before the date of the conveyance to the plaintiff (22), as in Buckly v. Williams, 3 Lev. 325. Covenant upon articles, whereby defendant covenanted that plaintiff should quietly enjoy a close, and that one Knolls (who had a title to the premises by virtue of a certain lease to him thereof, made before the making of the articles aforesaid,) entered upon the plaintiff and expelled him. After verdict for plaintiff, it was moved in arrest of judgment, that the breach was not well assigned; because plaintiff did not shew what title Knolls had ; and, perhaps, the title which he had was under the plaintiff; but the objection was overruled; for the title of Knolls could not be supposed to be under the plaintiff; for the declaration states, that Knolls had a title by virtue of a demise made to him before the making of the articles to the plaintiff, and let the title be derived from whom it will, yet being before the articles made with the plaintiff, the covenant is broken. The preceding remarks have been confined to the cases of general covenants and evictions by strangers; but in cases where the covenant is particular, as against interruption by the grantor or lessor, or by any person expressly named; upon the eviction of the covenantee by the grantor or lessor, or by the person expressly named, it is not necessary for the plaintiff to aver title in the party evicting.
In covenant k, the declaration stated that the defendant granted a messuage, with the appurtenances, to plaintiff in fee, and covenanted for plaintiff's quiet enjoyment thereof, without the lawful let, entry, eviction, or interruption of the defendant: and assigned for breach, that defendant hindered plaintiff in the enjoyment of a pew appurtenant to the messuage; on general demurrer it was objected, that the injury complained of ought to be the subject of an action of tres
k Lloyd v. Tomkies, 1 T. R. 671.
(22) Or by averring that at the time of the demise to the plaintiff
, the party evicting had lawful title; as was done in Foster v. Pierson, 4 T. R. 617. and ante, p. 472, or that the party evicting entered by virtue of a title theretofore made, by, from, and under the defendant, as was done in Hodgson v. East India Company, 8 T. R. 278. But merely averring that J. S. entered claiming title from the defendant, is not sufficient, Aleyn, 38. Eeles v. Lambert.
pass, but could not be the foundation of this action, the covenant being against all lawful disturbance: to this it was answered, that, where the breach complained of was the act of the covenantor, any interruption was sufficient to support this action against him. Judgment for the plaintiff; Ashhurst, J. observing, that it was not necessary that the party against whom the action was brought should have a title ; it was sufficient if he did the act under a claim of title; that in this case the act itself asserted a title ; for the defendant locked up the pew, which was as strong an assertion of right as could well be imagined. So where, in covenant!, the plaintiff set forth a covenant, which recited that defendant had sold, to the plaintiff's testator, goods which had been seised by one Bell, and therefore defendant covenanted to plaintiff's testator, to save him harmless from any costs or damages relating to such seisure, and then assigned for breach, that the said Bell had seised the goods under pretence of a debt due from defendant to him, touching which seizure testator was put to great expense, which defendant neglected to pay. It was objected, that the covenant did not extend to tortious acts, for which the plaintiff had a remedy, and therefore the title of Edward Bell ought to have been set forth; that“ having lawful title” was not sufficient; that here it was only said “under pretence,” which was not so strong. The counsel for the plaintiff admitted it to be a'general rule, that the plaintiff, must shew a title in the disturber; but insisted that that rule extended only to the case of a general covenant, and not where it was particular against the acts of particular persons; for in that case it comprehended even tortious acts. And by the court: This pretence of Bell's being recited in the covenant, shews it was meant as a security against it in all events; and though it should be tortious, yet being particular, it falls within the distinction that has been well taken. Adjourned, and Hil. T. following, judgment for plaintiff, defendants counsel declining to argue it.
The result of the foregoing cases is, that where a person covenants to indemnify, against all persons, this is but a covenant to indemnify against lawful title. And the reason is, because, as it regards such acts as may arise from rightful claim, a man may well be supposed to covenant against all the world; but it would be an extravagant extension of such a covenant, if it were good against all the acts which the folly or malice of strangers might suggest; and, therefore, the law has properly restrained it within its reasonable import; that is to rightful title. It is, however, different when an individual is named; for, there, the covenantor is presumed to know the person against whose acts he is content to covenant, and may, therefore, be reasonably expected to stipulate against any disturbance from him, whether by lawful title or otherwise. Hence where the condition of a bond which recited the purchase, from W. by plaintiffs, of lands, was to save them and the lands harmless from all manner of mortgages, judgments, extents, executions, and other incumbrances, had and obtained, or thereafter to be had and obtained, by T. T. or any other person; it was holden m to bind the obligor against the wrongful entry of T. T.
1 Perry v. Edwards, I Str. 400.
Tenant for life, and his eldest son the remainder-man in tail, leased to E. S. for ninety-nine years, and gave E. S. who was acquainted with their title a bond, conditioned for the due observance of their covenant for quiet enjoyment. E. S. underlet to W. for sixty years, and covenanted with W. against eviction by any person claiming under E. S. or by his acts, neglect, default, or procurement. Tenant for life and his eldest son being dead without issue, W. was evicted by the next remainder-man in tail. It was holden, that no breach could be assigned on the covenant; for first, the eviction was not by any person claiming under E. S., but hy a person claiming by title, paramount to E. S.; secondly, it did not appear to be an eviction arising from the acts or procurement of E. S.: lastly, although the eviction would have been prevented if E. S., at the time he took the lease for ninety-nine years, had required the lessors to join in common recoveries to cut off the entail, and if the lessors had complied with such requisition, yet, inasmuch as E. S. had no means of compelling common recoveries to be suffered by the lessors, if, upon his requisition, they refused, it could hardly be said that he was guilty of any neglect or default in not procuring that step to be taken, which he was unable to compeln. A. covenants for himself, his heirs, and assigns, that B. shall quietly enjoy, without the lett of A., his heirs, or assigns, or any person claiming under him or them. The estate originally belonged to Ai's wife, and on marriage was settled on A. for life, with power to make leases, and also with power to A. and his wife jointly, to revoke the uses, which they did; and, after A.'s death, B. was evicted under the new settlement. Covenanto lies against the executors of A., though the estate moved from the wife and not from A.
m Nash v. Palmer, 5 M. and S. 374.
See also Southgate v. Chaplin, Comyns, R. 230, and Fowle, Exec. v. Welsh, Gent. one, &c. I B. and C.
n Woodhouse v. Jenkins, 9 Bingh.
431. See also Ireland v. Bircham, 2 N. C. 90.
A covenantp by lessor, that the lessee, paying the rent, &c. shall quietly enjoy, is not a conditional covenant, making the payment of the rent a condition precedent to the performance of the covenant for quiet enjoyment, on the part of the lessor.
6. Of the Covenant not to assign without License.
A covenant not to assign or under-let without license of the lessor, with a clause of re-entry in case of breach, is frequently introduced into leases, for the purpose of securing to the lessor a responsible tenant in whom he can repose a confidence. (23). It will be proper, therefore, to consider the effect and operation of such covenant; what will amount to a breach of it, and what to a dispensation from it.
The general principle is, that a lessee may assign his interest in the term. But the lessor may restrain the lessee from assigning by covenant or proviso; and if the lessor grants the term subject to a condition, that it shall cease, if the lessee assigns, an assignment by the lessee will be void. But if the lessor restrain the lessee from assigning by cove
o Hurd v. Fletcher, and Bridgewood, p Dawson v. Dyer, 5 B. and Ad. 584.
executors, &c. B.R.M.19.G.3.; B.P. 2 Nev, and M. 539. But see Ireland B. 85. Dampier MSS, L I. L.
v. Bircham, 2 Bingh. N. C. 90.
(23) In Hendersor v. Hay, 3 Bro. Ch. Cas. 632, upon a bill filed for the specific performance of an agreement by a landlord to grant a lease of a public-house, containing the common and usual covenants : Lord Thurlow, Ch. was of opinion, that though the covenant not to assign without license might be a very usual one, where a brewer or vintner let a public-house, that would not make it a common covenant; and declared, that the landlord was not entitled to have it inserted in the lease. In Morgan v. Slaughter, 1 Esp. N. P. C. 8. Lord Kenyon, C. J. held such a covenant to be a fair and usual covenant. But in Church v. Brown, 15 Ves. 258. 531., the opinion of Lord Thurlow was recognized by Lord Eldon, Chr.; and in Brown v. Ruban, 15 Ves. 529. Sir W. Grant, M. R. held, that under an agreement for a lease “with usual covenants,” the lessor was not entitled to this covenant against assigning or underletting without license. See further on this subject, Bennet v. Womach, 7 B. and C. 627. Vere v. Lovenden, 12 Ves. 183; Jones v. Jones, 12 Ves. 188; Van v. Corpe, 3 M. and K. 269; Propert y. Parker, ib. 280.
nant only, although the lessee by assigning commits a breach of covenant, yet the assignment itself is not voidi.
Lessee for years covenanted not to assign, transfer, or set overk, or otherwise do or put away the lease of the premises thereby demised, or any part thereof, to any person, without the license of the lessor in writing; it was holden, that an underlease was not a breach of this covenant. So where the covenant was not to assign or otherwise part with the premises, or that present indenture of lease; it was holden', that a deposit of the lease with a creditor, as a security for money advanced, was not a breach. But where the words of the covenant werem, that the lessee would not set, let, or assign over the whole or part of the premises without leave; it was holden, that an underlease amounted to a breach. So where the proviso was, that the lease should be void", "if the lessee assigned or otherwise parted with the indenture of lease, or the premises thereby demised, or any part thereof, for the whole or any part of the term, without leave in writing;” it was holden, that the words included an underlease. And here it is to be observed, that a lease by the lessee for the whole term amounts to an assignment, although the rent be reserved to the lessee, and a power of re-entry given to him, and not to the reversionero. But if a day only be excepted out of the term, then it is an underleasep. If a lease contain a proviso, making it void if the lesseeq, his executors, or administrators, alien without license in writing, a voluntary assignment by the executor or administrator, without such leave, will amount to a forfeiture (24). Provisoes for re-entry
i Per Holroyd, J. Paul v. Nurse, 8 B. n Doe d. Holland v. Worsley, 1 Campb. and C. 488.
20. Ellenborough, C. J. k Crusoe dem. Bugby v. Blencowe, 3 o Palmer v. Edwards, Doug. 186. n.
Wils. 234. 2 Bi. R. 766, S. C. p Holford v. Hatch, Doug. 182. 1 Doe d. Pitt v. Laming, 1 R. and M. 9 Roe d. Gregson v. Harrison, 2 T. R. 36.
425. m Roe d. Gregson v. Harrison, 2. T.R.
(24) In Seers v. Hind, 1 Ves. Jun. 295. one of the questions was, whether executors were warranted in disposing of a lease as assets of the testator, where there was a proviso against alienation by the lessee. Lord Thurlow, Ch. said, “If A. lets a farm to B., with covenant not to alien, and B. dies, may not his executors dispose of the term? I think it has been determined that they may, and I have always taken it to be clear law. It is an alienation by the act of God. I remember Lord Camden entered into the question much in the same way. He took it to be a clear law, that an alienation by death could not be a forfeiture. In the case of a lease for years to A., it goes to his executors, not by way of limitation, as in the