Husbandry.

furnished house was let, subject to an express condition that it was fit for occupation, the condition was held broken by the house being infested by bugs (x).

So also there is no implied covenant on the part of the lessor that he will do any repairs whatever (y); and if the landlord contract to do the repairs, there is no implied agreement that upon breach the tenant may quit (x), or that the tenant may do the repairs and deduct the amount from his rent (a).

There is also an implied covenant on the part of the lessee that he will manage and cultivate the lands demised in a good and husbandlike manner, according to the custom of the country (b).

If, however, there is an express covenant in the lease, such a covenant will control the implied covenant to farm according to the custom (c).

Where the covenant is not inconsistent with the custom, both may stand (d), and it is question of law

(x) Campbell v. Lord Wenlock, 4 F. & F. 716.

(y) Arden v. Pullen, 10 M. & W. 321; Gott v. Gandy, 2 E. & B. 845.

(2) Surplice v. Farnsworth, 7 M. & G. 576.

(a) Howlett v. Strickland, Cowp. 56; Smith v. Mapleback, 1 T. R. 446.

(b) Powley v. Walker, 5 T. R. 373; Legh v. Hewitt, 4 East. 154; Angerstein v. Hanson, 1 C. M. & R. 789; Earl of Falmouth v. Thomas, 1 Cr. & M. 89; Hallifax v. Chambers, 4 M. & W. 662;

Martin v. Gilham, 7 A. & E. 540;
Bickford v. Parson, 5 C. B. 920;
Wilkins v. Wood, 17 L. J. Q. B.
319.

(c) Webb v. Plummer, 2 B. & C. 746; Roberts v. Barker, 1 Cr. & M. 808; Clarke v. Roystone, 13 M. & W. 752.

(d) Hutton v. Warren, 1 M. & W. 466; Holding v. Pigott, 7 Bing. 465; Sutton v. Temple, 12 M. & W. 63; Faviel v. Gaskoin, 7 Exch. 273; Muncey v. Dennis, 1 H. & N. 216; White v. Nicholson, 4 M. & G. 95; Martyn v. Clue, 18 Q. B. 661, 682.

for the Court whether the custom is excluded by the terms of the covenant (e.)

An agreement to grant a lease contains an implied For title. undertaking on the part of the intended lessor that he has title to grant such lease; and, if he has not, he is liable to an action at the suit of the intended lessee (f). So also upon an agreement to sell an existing lease, the seller impliedly engages to make out the lessor's title to demise (g); but upon the sale of an agreement for a lease, it seems to be otherwise (h), for it is not a sale of an interest in the land, but only a sale of an agreement.

ment.

A tenant has a right to have his estate secured to Quiet enjoy. him, and he has a right to have the quiet enjoyment of it secured to him (i). Hence arises an implied covenant upon the part of the landlord for quiet enjoyment by the mere use of the word "demise " (j), and that even upon a parol demise (k).

The word "let" or "lease," or any other word creating an actual demise, will have the same force as the word "demise" in creating a covenant for quiet enjoyment (1).

(e) Parker v. Ibbetson, 4 C. B. N.S. 846. See post, Part 2, c. 3, 8. 3.

(f) Stranks v. St John, L. R. 2 C. P. 376, 36 L. J. C. P. 118; Anthony v. Brecon Market Co., L. R. 2 Ex. 167.

(g) Hall v. Betty, 4 M. & G. 410; Souter v. Drake, 5 B. & Ad. 992; De Medina v. Norman, 9 M. & W. 820.

(h) Kintrea v. Perston, 1 H. & N. 357, 25 L. J. Ex. 287.

(i) Smith's L. & T. 480, 2d edit.

(j) Williams v. Burrell, 1 C. B. 429; Adams v. Gibney, 6 Bing. 656; Noke's case, Co. Rep. 80 b; Fraser v. Skey, 2 Chit. Rep. 646; Burnett v. Lynch, 5 B. & C. 589.

(k) Bandy v. Cartwright, 8 Exch. 913; Messent v. Reynolds, 3 C. B. 194.

(1) Bandy v. Cartwright, 8 Exch. 913; Hall v. City of London Brewery Company, 2 B. & S. 737 31 L. J. Q. B. 257.

The word "give or grant" had formerly a similar effect; but now by the 8 & 9 Vict., c. 106, s. 4, in a deed executed after the 1st of October 1845, these words will not imply a covenant, except by special Act of Parliament.

This implied covenant assures to the tenant quiet enjoyment of the demised premises during the continuance of the term, without any lawful interruption or disturbance by any person having title (m); but it does not extend to assure the tenant of quiet enjoyment, without any eviction from or by the party or parties entitled to the reversion of or in the demised premises expectant on the termination of the landlord's lease (n).

A mere agreement for a lease does not create an implied stipulation for quiet enjoyment during the term agreed to be granted (o).

An express covenant will control an implied one (p).

An implied covenant for quiet enjoyment runs with the land, and may be sued on by the assignee of the lessee (g).

Sometimes covenants are implied from the express

(m) Williams v. Burrell, supra; Hayes v. Bickerstaff, Vaugh. 118; Lucy v. Levington, Freem. 103, 3 Keb. 163.

(n) Granger v. Collins, 6 M. & W. 458. See Jackson v. Cobbin, 8 M. & W. 790. See p. 131.

(0) Drury v. Macnamara, 5 E. & B. 612, 25 L. J. Q. B. 5;

Brashier v. Jackson, 6 M. & W. 549; Coe v. Clay, 5 Bing. 440; Jinks v. Edwards, 11 Exch. 775; Parker v. Taswell, 2 De G. & J. 559, 27 L. J. Ch. 42.

(p) See ante, pp. 135, 137, 138.

(9) Williams v. Burrell, 1 C. B. 402.

covenants which have been entered into, although the Other implied Courts have recently shown a disposition not to imply covenants. covenants which ought to have been expressed (r).

SECT. 8.-PROVISOS AND CONDITIONS.

After the covenants by the lessee, provisos and conditions by which the estate granted may be enlarged (s) or defeated are frequently inserted. condition or proviso (t) is defined to be "some quality annexed to a real estate, by which it may be defeated, enlarged, or "created upon an uncertain event" (u).

No precise form of words is necessary for the purpose of creating a condition in a lease, as the construction of the clause will be governed by the apparent intention of the parties, to be collected from the instrument itself (v). Even if the word "condition" be used, it will be construed to mean contract or

Not to assign.

stipulation, in order to effectuate the intention of the parties (w).

And where words both of covenant and condition are used, both will operate (x). Where a power of reentry is expressly given, or may be gathered from the words of the instrument, a condition, and not a covenant, will in general be created (y).

A condition may be indorsed on the instrument, or may be contained in another executed the same day (x).

Provisos or conditions which do not concern the thing demised, but are merely collateral, do not run with the land, so as to entitle an assignee of the reversion to sue (a).

Leases usually contain provisos and conditions not to assign without license, with powers of re-entry for any breach of such conditions (b).

We have already stated the general nature and effect of a covenant not to assign or underlet, and also the nature of provisos and conditions in

(w) Hayue v. Cummings, 16 C. B. N.S. 421.

(x) Shep. Touch. 122; Co. Litt. 146; Co. Litt. 203 (B); Doe d. Henniker v. Wall, 8 B. & C. per Bailey, J., 315.

(y) Doe d. Wilson v. Phillips, 2 Bing. 13; Doe d. Gardner v. Kennard, 12 Q. B. 244. In Shaw v. Coffin, 14 C. B. N.S. 372, it was held that the following words in an agreement for letting did not create a condition :-"The said tenant hereby agrees that he will

not underlet the said premises without the consent in writing of the landlord."

(z) Com. Dig. Condition (A) 9; Griffin v. Stanhope, Cro. Jac. 456; Goodright d. Nicholls v. Mark, 4 M. & S. 30.

(a) Stevens v. Copp, L. R. 4, Ex. 20, 38 L. J. Ex. 31. See post, Part 3, c. 1, Covenants Running with the Land.

(b) See infra, ss. 8 and 9, pp. 141, 147; and also supra, Covenants not to Assign, p. 125.