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in a lease are to be construed as other contracts, according to fair and obvious construction; and not with the strictness of conditions at common law. Per Lord Tenterden, C. J. Doe d. Davis v. Elsam, 1 M. & Malk. 189.
An assignment by operation of law will not amount to a forfeiture: this point was decided for the first time in Doe d. Mitchinson v. Carter, 8 T. R. 57. where it was holden, that an assignment to a person purchasing the term from the sheriff under a bona fide execution, would not amount to a forfeiture.
But where the execution is in fraud of the covenant", the assignment under it will amount to a forfeiture, and the lessor may re-enter; as where the lessee gives a warrant of attorney to confess judgment to a creditor for the express purpose of enabling such creditor to take the lease in execution under the judgment. Covenant against assigning without license, is determined by a license once granted. 12 Ves. 191. per Sir W. Grant.
Under a condition not to alien without leave, if -leave is once granted, the condition is entirely discharged:
Corpus Christi College, in Oxfords, demised land for a term of years to A., with a condition, that neither A. or his assigns should alien the land without the special license of the lessors; afterwards the lessors, by writing under seal, licensed A. to alien the land to any person, and A. afterwards assigned the term to B.: after Bi's death, C. became entitled to the term, and assigned it to the defendant Syms. The lessors entered for condition broken. It was resolved by the court, that the alienation by license to B. had determined the condition as to the assignees; and that it was not in the power of the lessors to dispense with an alienation for one time, and yet to consider the estate aliened or demised as af
r Doe d. Mitchinson v. Carter, 8 T. R.
300. s Dumper v. Syms, 4 Rep. 119. b. Cro.
Eliz. 815. i Roll. Abr. 471. (G.)pl. 1. S. C. See the record of special verdict, Co. Ent. 614 b. pl. 22. "The
profession have always wondered at Dumper's case, but it has been law so many centuries that we cannot now reverse it." Per Mansfield, C.J. in Doe d. Boscawen v. Bliss, 4 Taunt. 736.
case of a remainder over, &c., but it goes to them as coming in the place of the lessee. I understood it to be well settled as I have stated. But I do no not mean to lay down, that a man may not by a clause in his will provide that, in case of a devolution to executors, it shall not be alienable by them; but it must be very special for that purpose.
terwards remaining subject to the condition; for a condition is to be taken strictly, and by the alienation with license it is satisfied. So in the case of a demise to A., B., and C.t, with a like condition, if a license to alien be granted to A., and A. aliens by virtue of such license, the condition is determined as to B. & C. (25.)
Lessee covenanted that he, his executors, or administrators, would not demise, &c. the premises without license; the lessee became a bankrupt; his assignees took to the lease, and assigned it to A. who assigned it to the original lessee, who underlet to B.; it was holden that the covenant of the lessee was discharged by 49 Geo. 3. c. 121, s. 19; and consequently that the subsequent underletting by the lessee was no breach of that covenant, which no longer existedu. The stat. 49 Geo. 3. c. 121. is now repealed, but see similar enactment in 6 Geo. 4. c. 16, s. 75, which provides for three cases: first, where the assignees accept the lease; in which case it declares that the bankrupt shall not be liable to pay any rent accruing after the date of the commission, or to be sued in respect of the non-performance of any of the covenants: secondly, where the assignees decline the same; in this case also the bankrupt shall not be liable, in case he deliver up the lease to the lessor within fourteen days after he shall have had notice that the assignees shall have declined to accept the lease; in this case, the covenants on both sides fall to the ground. It has been holden, however, that this is a personal discharge to the lessee only, and that a suretyy who has joined in the lease with him is liable for breaches of covenant, accruing between the date of commission and actual delivery up of lease by lessee under this statute. And where original lessee had assigned to B. subject to the payment of rent, and B. entered, and afterwards became bankrupt, and rent became due after the commission, and the assignees of the estate decline the lease; and then covenant was brought by the lessor against the lessees it was
t Leeds and Crompton, adjudged; cited
in 4 Rep. 120. a. 1 Roll. Abr. 472 (G.) pl. 7. S. C.
u Doe d. Cheere v. Smith, 5 Taunt. 795.
(25) So in the case of a demise, upon condition that the lessee shall not alien the land, or any part thereof, without the assent of the lessor, and afterwards the lessee aliens part, with the assent of the lessor, the lessee may alien the residue without such assent, per Popham, C. J. 4 Rep. 120 a. who denied the contrary position (though adjudged in Dyer, 384 b. pl. 32.) to be law.
holden? the action might be maintained; for if, before the statute, there had been an assignment of the lease, and the lessor had accepted rent, he might, notwithstanding, have proceeded by covenant against the lessee ; for the privity of contract was not destroyed. The statute made no difference; it contemplated the case of a bankrupt lessee only, not of an assignee of the term. The statute did not apply to this case. The statute operates only as a personal discharge of the bankrupt; for it does not say that the lease and the covenants shall be at an end, but merely that the bankrupt lessee shall not be liable to be sued in respect of any subsequent non-observance of the covenants. Lastly, where the assignees do not, upon request, elect whether they will accept or decline; in which case, the Lord Chancellor has power, upon petition, to order the assignees to elect, and to deliver up the lease and possession of the premises.
Whether the license to assign be general, as in the preceding case of Dumper v. Syms, or particular, as “to one particucular persona, subject to the performance of the covenants in the original lease,” yet the condition is gone, and the assignee may assign without a license. But where there is an exception out of the original restriction to alienate in favour of an assignment by will, and an assignment is made by the lessee by will; and then his executors make another assignment, and not by will, it seems that this last assignment is badb. Acceptance by the lessor of rent due after condition broken with notice, is a waver of the forfeiture. A court of equity will not relieve against a forfeiture occasioned by breach of covenantd not to assign.
2 Manning v. Flight, 3 B. and Ad.
211. a Brummel v. Macpherson, 14 Ves. 173.
Eldon, Ch. b Lloyd v. Crispe, 5 Taunt. 249.
c Goodrightd. Walter v. Davids, Cowp.
804. Whichcot v. Fox, Cro. Jac.
398. d Per Lord Eldon, Chr. in Hill v. Bar
clay, 18 Ves. 63.
IV. By whom the Action of Covenant may be maintained :
1. By Heir.-COVENANTS which run with the land will descend to the heir of the covenantee; and he may sue for a breach thereof; as where the lessee covenanted with the lessore, his executors, and administrators, to repair; it was holden, that the heir of the lessor, though not named, might have covenant against lessee for not repairing. Plaintiff declared as heir on a covenant by lessee for years to repair', and assigned for breach, that the premises were out of repair for a period of time which included a portion of his ancestor's life; and on this ground an exception was taken in arrest of judgment, after verdict for the plaintiff; but it was overruled, Holt, C. J. observing, that if the premises were out of repair in the time of the ancestor, and continued so in the time of the heir, it was a damage to the heir; and the jury give as much in damages as would put the premises in repair, respect being had, not to the length of time they continued in decay, but to what it will cost at the time of action brought, to put the premises in repair. Upon a covenant with A. and his heirs to do all lawful and reasonable acts for further assurance, upon request, and a request, made by the ancestor in his life to levy a fine, and neglect so to do, the ancestor not being evicted in his life, but the heir being evicted afterwards, the heir may maintain an action upon the request of the ancestor, and refusal made to him; because the ultimate damage had not accrued in the life of the ancestor.
2. By Executor.-A. and B. his wife by indenture, demised lands to C. for 21 years, and thereby covenanted, that they (viz.) A. and B. would, at the end of 21 years, make a good lease to C. and his assigns for 21 yearsh, commencing at the expiration of the first term. During the first term, the lessee died, having made his will and appointed D. his executrix, who entered, &c. and died, having made her will and appointed the plaintiff her executor, who entered, &c. At the expiration of the first term, A. and B. having refused to grant the further lease, an action was brought by the plaintiff (as executor of D. executrix of C. the lessee, on this covenant against A. the husband; and it was adjudged that the action would well lie. The reasons of the judgment are not mentioned in the report; but it appears to have been decided on the ground that the plaintiff, being executor of D. who was executrix of C. the lessee, was as such entitled to the benefit of his covenant. Covenant by the plaintiff as executor of J. S.. The defendant sold lands to J. S., and covenanted with him, his heirs, and assigns, that he should enjoy the lands against all persons claiming under one A.; and the breach assigned was, that B. and C. in the lifetime of the testator, entered claiming under A. On demurrer to defendant's plea, it was contended, for the defendant, that the covenant was with J. S., his heirs, and assigns, touching an estate of inheritance; and therefore, that the action ought to have been brought by the heir or assignee, and not by the executor; but it was resolved by the court, that the eviction being to the testator in his life time he could not then have an heir or assignee of this land, and therefore the damages belonged to the executor, though not named in the covenant; for he represented the person of the testator. But where the plaintiff as executrix declared that the defendant, by deed, conveying to plaintiff's testator certain land in fee, subject to redemption on payment of a sum certain, covenanted with the testator, his heirs, and assigns, that he was at the time of the execution of the deed seised in fee, and had a right to convey, &c. and assigned for breach that the defendant was not seised, &c. and had not a right to convey, &c. it was holden, that the executrix could not maintain this action without showing some special damage to the testator in his lifetime, or that the plaintiff claimed some interest in the premisesk. But the plaintiff, being devisee in fee, sued afterwards in that character, stating as damage, that the premises were thereby of much less value than they would have been, and that she had been prevented from selling them at so large a price as she otherwise would, and it was holden' that the action was maintainable.
e Lougher v.Williams, 2 Lev. 92. Skin.
305. f Vivian v. Campion, Salk. 141. g King v. Jones and another, 5 Taunt,
418. Affirmed on error, 4 M. & S.
188. h Chapman v. Dalton, Plowd. 284. a.