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putes, whereas the general prohibition allows the lessor to exercise his judgment upon each application made to him, and in that case his rights under the covenant will not be limited by any consideration as to the nature of the trade or business proposed to be carried on. It may be added that the word “busi
includes keeping a school.3
As to underletting..
The covenant against assignment should, if intended to prohibit underletting, be expressly worded to that effect, for a covenant merely not to assign or put away the lease or the premises, does not prevent the lessee from making an underlease of part of the term ; 4 although an underlease of the whole term amounts to an assignment. A covenant not to assign is not broken by the deposit of a lease by way of security for money lent, since this is not a parting with the legal interest, nor by giving a warrant of attorney to confess judgment in an action, although the result may be that the lease is taken in execution and sold,7 for the covenant does not apply to an involuntary alienation by operation of law.8 But it is broken by an assignment by one joint-tenant to another, since although it relates to the estate of all the joint-tenants, it necessarily involves the interest of each.9
Covenant to The lessee's covenants terminate by a general underdeliver up in good repair. taking on his part that he will, at the end of the term, deliver up the premises in good repair, and in such a condition as shall be consistent with the due performance of his covenants.
1 See as to this Doe v. Bird, 2 A. & E. 161; Jones v. Thorne, 1 B. & C. 715; Gutteridge v. Munyard, 7 C. & P. 129; Harrison v. Good, L. R. 11 Eq. 338.
2 Macher v. Foundling Hospital, 1 Ves. & B. 186. 8 Doe v. Keeling, 1 Mau. & Sel. 95, 100. 4 Crusoe v. Bugby, 3 Wil. 234 ; Kindersley v. Orpe, 1 Doug. 56. 6 Beardman v. Wilson, L. R. 4 C. P. 57. 6 Doe v. Hogg, 4 Dow. & Ry. 226; Ex parte Cocks, 2 Deac. 14. ? Doe v. Carter, 8 T. R. 57. 8 Croft v. Lumley, 6 H. L. C. 672. 9 Varley v. Coppard, L. R. 7 C. P. 505, 507.
These covenants are followed by a very important Proviso for
Re-entry. clause, which is known as the Proviso for Re-entry. This is to the effect that whenever any part of the rent shall have been in arrear for (generally) three weeks, whether the same shall have been legally demanded or not, or whenever the lessee shall commit a breach of any of his covenants, the lessor may re-enter upon the premises, and that thereupon the term granted shall absolutely determine.
The proviso should particularly state that the reentry may be made whether the rent has been legally demanded or not, for this wording enables the lessor to re-enter for non-payment of rent without any demand for rent, and it also avoids the common-law niceties which were formerly requisite in making a re-entry for non-payment, and which still apply,in the absence of such a stipulation, unless there is a half-year's rent due, and no sufficient distress can be found upon the premises.3
The grounds on which a lessor will be held to have lost his right to enforce a forfeiture have been already discussed in our chapter on Estates for Years. We will, therefore, only add here, with reference to another clause in the lease, that a notice requiring a lessee to repair within a certain (named) time, prevents the lessor from re-entering until after the expiration of
1 Doe v. Masters, 2 B. & C. 490. 2 2 Platt on Leases, 341.
3 See 4 Geo. II. c. 28, § 2; 15 & 16 Vict. c. 76, $ 210; and Doe v. Alexander, 2 Mau. & Sel. 525; Doe v. Wilson, 5 B. & Ald. 363; Philipps v. Bridge, L. R. 9 C. P. 48, 49, note (2).
that time ;1 although the case is otherwise when the notice requires him to repair " forth with." 2
Lessor's cov- The proviso for re-entry is followed by a covenant enant for quiet enjoyment.
on the part of the lessor, that the lessee and his representatives shall, provided that they pay the rent and observe the covenants mentioned in the lease, peaceably enjoy the premises without any interruption by the lessor, his heirs, or assigns, or any person lawfully claiming through liim or them. It will be noticed that this is not an absolute covenant for quiet enjoyment, and it should always be inserted in the lessor's interest; for, in the absence of any covenant, the lessor will be presumed to have given an absolute covenant for quiet enjoyment, and will thus be liable for the acts of persons claiming adversely to him, 4 whereas the qualified covenant saves him from any risk of this kind. It is to be observed that the covenant for quiet enjoyment, whether in a purchase deed or in a lease, does not enlarge or increase the rights granted by the previous part of the deed. Its only effect is that an additional remedy, namely, an action for damages, is given if the lessee cannot get, or is deprived of, any thing which has been previously professed to be granted or demised.
The deed concludes with the ordinary Testatum, which should, if there is no counterpart, be signed by both the lessor and the lessee, but it is more usual to
i Doe v. Meux, 4 B. & C. 606. 2 Roe v. Paine, 2 Camp. 520.
3 Nokes's Case, 4 Rep. 806. [Bandy v. Cartwright, 8 Ex. 913. And this, too, though the lease be by parol. Hall v. City of London Brewery Co., 2 B. & S. 737.)
4 Bandy v. Cartwright, 22 L. J. (Ex.) 285; Hall v. City of London Brewery Co., 81 L. J. (Q. B.) 257.
5 Line v. Stephenson, 4 Bing. N. C. 678; Stanley v. Hayes, 3 Q. B.
6 Leech v. Schweder, L. R. 9 Ch. 463, 474.
have a counterpart, in which case the lease is signed by the lessor, and the counterpart by the lessee. Both instruments should be properly attested, and the lease, if made of land belonging to a married woman, but not settled to her separate use, must be duly acknowledged by her.
may conclude these remarks by calling attention Statutory to an act of Parliament, passed with the object of provisions as shortening the ordinary form of leases, but remarkable chiefly on account of its utter failure to carry out that object. This act is the 8 & 9 Vict. c. 124, entitled 8 & 9 Vict. c. “An Act to Facilitate the Granting of Certain Leases.” 124. It contains in the schedule two parallel columns, in one of which are the ordinary clauses of a lease as drawn by conveyancers, whilst in the other are as many marginal notes, each relating to a separate clause. The act gives to each marginal note the effect of its corresponding clause, but these notes are too concise to give sufficient information to an ordinary person looking at a lease so drawn, in order to ascertain his rights or obligations under it, and the act appears to be very seldom made use of.
1 See also Dart, V. & P. 463.
OF MORTGAGE DEEDS.
Form of mortgage. Freeholds.
We come next to the consideration of the ordinary form of a mortgage deed of land. This, as we have noticed already, consists essentially of a conveyance of the mortgaged property to the mortgagee, with a proviso for its reconveyance when the debt secured by it is paid off. It contains, in addition, various other clauses which are necessary to give completeness to the transaction. Where the subject of the mortgage is a freehold estate in land, the conveyance, ordinarily, takes the form of an absolute grant of it, subject to the proviso for redemption. On a mortgage of leaseholds, it is open to the mortgagee to take either an assignment of the whole term for which the property is held by the mortgagor or else a lease for a period a few days short of the whole term. A question as to which plan is the better can only be answered by reference to the circumstances of each case. Generally speaking, if the covenants of the lease are not onerous, the mortgagee had better take an assignment of the whole term, as he thus obviates any risk of the lease being forfeited by the mortgagor's dealings with the reversion, and has also the certainty of any fixtures which may be on the property forming a part of his security: a point which will be presently referred to. On the other hand, the mortgagee, if he takes the whole term, and even though he never enters into possession of the property, becomes liable to all the rents and covenants of the lease ; since he who takes an estate must, without