(60) conditions. CHAPTER III. OF AN ESTATE FOR YEARS (continued). Covenants and WE have already said that the consideration of the form of the covenants which are ordinarily inserted in a lease will be reserved for a future chapter, but it will be more convenient to notice in the present some recent enactments as to covenants and conditions in leases generally, and for this purpose we must refer briefly to the former state of the law on these two points. At one time it was held that no stranger to any covenant or condition could take any advantage or benefit by it. Thus, if A made a lease to B, and there were in the lease covenants by B for payment of rent and other purposes, with a proviso that if B failed to pay the rent, or to observe the covenants, A might re-enter on the demised premises and put an end to the lease; and then A sold his reversion to C: C, being originally a stranger to the covenants and condition, could not take any advantage of them. 32 Hen. VIII. c. 34. To meet this, an Act was passed in the reign of Henry the Eighth (a), which enacted that the grantees or assignees of any reversion or reversions should have the like advantages against the lessees, by entry for non-payment of rent or for doing waste or other forfeiture, and should also have all and like and the same advantage, benefit, and remedies by action only, for not performing of other conditions, covenants, or agreements contained or expressed in their leases or grants, as the lessors or grantors themselves might have had at any time. Similar provisions were also (a) 32 Hen. VIII. c. 34. contained in the Act in favour of lessees, as against the assignees of reversions. Under this statute C, in the case we supposed above, could now re-enter on the land, or sue B for breach of covenant. If, however, A had granted part only of the reversion to C, or had granted the whole, not to C alone, but in part to C and the rest to D; either of the new lessors could under the statute bring an action against B for any breach of covenant (b), but the statute did not confer on either of them a right of reentry, which was in many cases far more valuable than that of bringing an action. For the Common Law had another doctrine applying to conditions, although not to covenants, namely, that a condition was entire and indivisible, and, consequently, that none but an assignee of the reversion of all the premises could take advantage of it, unless the reversion had been severed by operation of law (c). The doctrine that conditions were indivisible also gave rise to another difficulty. Leases often contain a covenant by the lessee not to assign or underlet the premises, with a condition that if he does so the lease. shall be forfeited. But in Dumpor's Case (d), decided Dumpor's Case. in the year 1603, it was held that a condition in a lease that neither the lessee nor his assigns should alien it without the licence of the lessor was determined by an alienation by licence, and that consequently no subsequent alienation was a breach of the condition. The application of the general rule to the facts of this case seems to have been erroneous, and the correctness of the particular decision was afterwards. questioned by Lord Eldon (e), but it was nevertheless c. 35. 22 & 23 Vict. law until the passing, in the year 1859, of the 22 & 23 Vict., c. 35, which in effect provides (f) that every licence to do an act which, without such licence, would create a forfeiture, or give a right to re-enter, under a condition in any lease granted before or after the passing of the Act, shall, unless otherwise expressed, extend only to the permission actually given, but not so as to prevent any proceedings for a subsequent breach unless otherwise specified on such licence, and that (g) a licence so given to one of several lessees or co-owners to assign or underlet his share or interest, or to do any other act prohibited to be done without licence, or to any lessee or owner, or to any one of several lessees or owners, to assign or underlet part only of the property, or to do any such acts as aforesaid in respect to part only of such property, shall not operate to destroy or extinguish the right of re-entry in case of any breach of the covenant by the co-lessee or co-lessees or owner or owners of the other shares in the property, or by the lessee of the rest of the property (as the case may be) over or in respect of such shares or interests or remaining property. At the same time, the Act places the position of assignees of part of a reversion on a more satisfactory footing, by enacting (h) that where the reversion upon a lease is severed, and the rent or other reservation is legally apportioned (i), the assignee of each part of the reversion shall, in respect of the apportioned rent or other reservation allotted or belonging to him, have, and be entitled to, all conditions or powers of re-entry for non-payment of the original rent or other reservation, in like manner as if such conditions or powers had been reserved to him as incident to his part of the (f) S. I. (g) S. 2. (h) S. 3. (i) Rent is legally apportioned either by a grant of part of the reversion out of which the rent issues, or by granting part of the rent to one person and part to another. reversion in respect of the apportioned rent or other reservation allotted or belonging to him. With regard to leases made after the 31st of Conveyancing December 1881, the Conveyancing Act, 1881 (), has Act, 1881. enacted (k) that, on the one hand, the rent and benefit of the lessee's covenant shall be annexed to the reversionary estate in the land, although there may have been a severance of the reversionary estate; and, on the other hand, that notwithstanding such severance, the obligation of any covenant entered into by the lessor (so far as he has power to bind the reversionary estate) may be taken advantage of and enforced by the person in whom the term is from time to time vested. The Act also provides (1) that notwithstanding the severance of the reversionary estate in any land comprised in a lease, or the avoidance, or cesser in any other manner, of the term granted by a lease as to part only of the term comprised therein, every condition and right of re-entry shall be apportioned and remain in force with respect to the term wherein each severed part is reversionary, or in respect of the land still subject to the lease, in the same manner as if there had been no severance. nants run with Of the various covenants contained in leases, some When coveare binding only on the persons actually making them, the land. or on whose behalf they are made, others again are said to "run with the land," meaning that the liability to perform them, and the right to take advantage of them, passes to every assignee both of the reversion and of the term, this reciprocity being essential to their existence. The leading case on this subject is Spencer's Case (m), Spencer's Case. (j) 44 & 45 Vict. c. 41. (k) Ss. 10, 11. (1) S. 12. (m) 5 Rep. 16a, and see notes, 1 Smith L. C. 68, et seq. The alienation and determination of an estate for years. in which it was held (1) that covenants run with the land and bind the assignees, whether mentioned or not, when they extend to things in esse parcel of the demise, such, for instance, as to repair an existing house; but (2) that covenants relating to things not in esse at the time of the demise do not bind assignees unless mentioned; and (3) that if the thing to which the covenant relates is merely collateral to the land, such as to build a house on land of the lessor not part of the land demised, the assignee is not bound although mentioned. Covenants of the first sort are: by the lessor, that the lessee shall have quiet enjoyment of the premises during his term (n), or for renewal of the lease if required (o): by the lessee, to repair the premises when required (p), or to put them in repair and leave them peaceably and in good repair (q), or to insure them (r), or not to assign them without licence (s). The soundness of the second resolution in Spencer's Case has been questioned in a modern case (t), in which the judges of the Court of Exchequer gave it as their opinion that covenants of the second kind ought to bind the assignee whether mentioned or not, and such would seem to be the preferable view, but it would appear that the resolution in Spencer's Case is too firmly established to be shaken (u). We have now arrived at the third division of our subject, namely, the alienation or determination of an estate for years. We have already seen who may create and who may acquire terms of years; also that (n) Campbell v. Lewis, 3 B. & Ald. 392. (0) Roe v. Hayley, 12 East, 464, 469; Simpson v. Clayton, 4 Bing. N. C. 758. (p) Dean of Windsor's Case, 5 Rep. 24b. (q) Martyn v. Clue, 18 Q. B. 661. (r) Vernon v. Smith, 5 B. & Ald. 1. (s) Williams v. Earle, L. R. 3 Q. B. 739. It must be understood that these remarks apply only to the case of a landlord and tenant. (t) Minshull v. Oakes, 2 H. & N. 793. (u) Dart V. & P. 766, note (ƒ). |