16

English High Court of Justice in a case where the defendant had entered into an agreement to take a lease for a dwelling-house, to contain "the usual covenants and provisos." The lease tendered to the defendant contained a covenant that the lessee would not, without the lessor's consent, "assign, underlet or part with the premises." The court held that a covenant not to assign was not a "usual covenant." The master of the rolls said: "This was decided by Lord Thurlow in Henderson v. Hay, 15 by Lord Eldon in Church v. Brown,15 15a and more recently by the Court of Appeal in Hodgkinson v. Crowe, and by Bacon, V. C., in the same case," so that it cannot now be fairly disputed. It is true that a contrary decision of Romilly was cited --Haines v. Burnett-but that case appears to me to be opposed to principle and authority, and it must now be treated as distinctly overruled by Hodgkinson v. Crowe. In Haines v. Burnett, Lord Romilly, without any special provision having been made in the contract to that effect, held that a covenant should be inserted making the lease determinable on the bankruptcy of the lessee or on his making any arrangement for the benefit of his creditors. That was, in fact, nothing less than a variation of the contract. I cannot see any reason for holding such a covenant to be usual, and it is rather difficult, in looking at the case, to understand how it was decided. Lord Romilly seems to have thought that, in considering general covenants and all such other covenants as are usually inserted in leases of property of a similar description, some regard might be had to the peculiar nature and tenure of the property; but I cannot find any evidence on that point mentioned in that report, and it would seem that the judge, from his view of the nature of the property, inserted the clause. But when we look at the reasoning of Bacon, V. C., in Hodgkinson v. Crowe, I think it is conclusive against any judge being allowed to say from his own view that such a covenant ought to be introduced. 18

to be such covenants as were just as well known in such leases as the usual covenants under an agreement to convey an estate, and though the word 'incidental' is not very precise, I conceive Lord Thorlow's meaning to have been that the party had a right to those covenants that would be inserted in the execution of an agreement for a lease arising out of the general well-known practice as to such leases, and not contradicting the incidents of the estate belonging to a lessee, one of which is the right to have the estate without restraint beyond what is imposed upon it by operation of law, unless there is an express contract for more."

§ 4. Same-Same-Rule of property.-Lord Eldon says that the safest rule for property is that a person shall be taken to grant the interest in an estate which he proposes to convey, or the lease he proposes to make, and that nothing which flows out of that interest as an incident is to be done away by loose expressions to be constructed by facts more loose, that it is upon the party who has forborne to insert a covenant for his own benefit to show his title to it, and that it is safer to require the lessor to protect himself by express stipulation than for courts of equity to hold that contracting parties shall insert, not restraints expressed by the contract or implied by law, but such, more or less in number, as individual conveyancers shall from day to day prescribe as proper to be imposed upon the lessee, and that all those restraints so imposed from time to time are to be introduced as the aggregate of the agreement.21

§ 5. Same-Same-Covenant to pay rent.-A covenant to pay rent is necessarily implied from the nature of the relation of a tenantcy for years, and the reservation in the lease of a stipulated sum.22 Such implied covenant is separate and distinct from any expressed covenants contained in the lease.23 In the absence of an express agreement the law implies a promise on the part of the lessee to pay a fair rent, but this obligation upon his part lasts only so long as he continues to occupy the premises, and he may, by assigning his term, discharge himself from all future responsibility; but if there is an express covenant on the part of the lessee to pay rent, he will continue to be bound by his contract although he assign over his lease. 24 For this reason a covenant to pay rent is always desirable, and

17 L. R., 19 Eq. 593; S. C., 33 L. T. (N. S.) 122. 18 See In re Lander Contact, 3 Ch. 41; S. C., 61 L. J. Ch. 707; 67 L. T. 521; Hampshire v. Wickens, 7 Ch. Div. 555, 560; S. C., 23 Moak's Eng. 708, 711.

19 15 Ves. 258; S. C., 10 Rev. Rep. 74. 20 15 Ves. 264.

21 Church v. Brown, 15 Ves. 258, 258; S. C., 10 Rev. Rep. 74.

221 Schoul. Pers. Prop. (2d ed.), § 31.

23 Van Rensselaer v. Smith, 27 Barb. 104; Royer v. Ake, 9 Penn. St. 461; Kimpton v. Walker, 9 Vt. 191, 198.

24 See post, § 9.

English High Court of Justice in a case where the defendant had entered into an agreement to take a lease for a dwelling-house, to contain "the usual covenants and provisos." The lease tendered to the defendant contained a covenant that the lessee would not, without the lessor's consent, "assign, underlet or part with the premises." The court held that a covenant not to assign was not a “usual covenant." The master of the rolls said: "This was decided by Lord Thurlow in Henderson v. Hay, 15 by Lord Eldon in Church v. Brown, 15a and more recently by the Court of Appeal in Hodgkinson v. Crowe, and by Bacon, V. C., in the same case," so that it cannot now be fairly disputed. It is true that a contrary decision of Romilly was cited -Haines v. Burnett-but that case appears to me to be opposed to principle and authority, and it must now be treated as distinctly overruled by Hodgkinson v. Crowe. In Haines v. Burnett, Lord Romilly, without any special provision having been made in the contract to that effect, held that a covenant should be inserted making the lease determinable on the bankruptcy of the lessee or on his making any arrangement for the benefit of his creditors. That was, in fact, nothing less than a variation of the contract. I cannot see any reason for holding

such a covenant to be usual, and it is rather difficult, in looking at the case, to understand how it was decided. Lord Romilly seems to have thought that, in considering general covenants and all such other covenants as are usually inserted in leases of property of a similar description, some regard might be had to the peculiar nature and tenure of the property; but I cannot find any evidence on that point mentioned in that report, and it would seem that the judge, from his view of the nature of the property, inserted the clause. But when we look at the reasoning of Bacon, V. C., in Hodgkinson v. Crowe, I think it is conclusive against any judge being allowed to say from his own view that such a covenant ought to be introduced. 18

§ 3. Same Same-Same-Lord Eldon's view. --In Church v. Brown, 19 Lord Eldon says: "Before the case of Henderson v. Hay,20 therefore, upon an agreement to grant a lease with nothing more than "proper covenants," I should have said they were

15 3 Brown C. C. 632.

15a 15 Ves. 258; S. C., 10 Rev. Rep. 74.

to be such covenants as were just as well known in such leases as the usual covenants under an agreement to convey an estate, and though the word 'incidental' is not very precise, I conceive Lord Thorlow's meaning to have been that the party had a right to those covenants that would be inserted in the execution of an agreement for a lease arising out of the general well-known practice as to such leases, and not contradicting the incidents of the estate belonging to a lessee, one of which is the right to have the estate without restraint beyond what is imposed upon it by operation of law, unless there is an express contract for more."

§ 4. Same-Same-Rule of property. —Lord Eldon says that the safest rule for property is that a person shall be taken to grant the interest in an estate which he proposes to convey, or the lease he proposes to make, and that nothing which flows out of that interest as an incident is to be done away by loose expressions to be constructed by facts more loose, that it is upon the party who has forborne to insert a covenant for his own benefit to show his

title to it, and that it is safer to require the lessor to protect himself by express stipulation than for courts of equity to hold that contracting parties shall insert, not restraints expressed by the contract or implied by law, but such, more or less in number, as individual conveyancers shall from day to day prescribe as proper to be imposed upon the lessee, and that all those restraints so imposed from time to time are to be introduced as the aggregate of the agreement.21

§ 5. Same-Same-Covenant to pay rent.-A covenant to pay rent is necessarily implied from the nature of the relation of a tenantcy for years, and the reservation in the lease of a stipulated sum.29 Such implied covenant is separate and distinct from any expressed covenants contained in the lease.23 In the absence of an express agreement the law implies a promise on the part of the lessee to pay a fair rent, but this obligation upon his part lasts only so long as he continues to occupy the premises, and he may, by assigning his term, discharge himself from all future responsibility; but if there is an express covenant on the part of the lessee to pay rent, he will continue to be bound by his contract although he assign over his lease. For this reason a covenant to pay rent is always desirable, and

17 L. R., 19 Eq. 593; S. C., 33 L. T. (N. S.) 122. 18 See In re Lander Contact, 3 Ch. 41; S. C., 61 L. J. Ch. 707; 67 L. T. 521; Hampshire v. Wickens, 7 Ch. Div. 555, 560; S. C., 23 Moak's Eng. 708, 711.

19 15 Ves. 258; S. C., 10 Rev. Rep. 74. 20 15 Ves. 264.

21 Church v. Brown, 15 Ves. 258, 258; S. C., 10 Rev. Rep. 74.

221 Schoul. Pers. Prop. (2d ed.), § 31.

23 Van Rensselaer v. Smith, 27 Barb. 104; Royer v. Ake, 9 Penn. St. 461; Kimpton v. Walker, 9 Vt. 191, 198.

24 See post, § 9.

the landlord. Such a covenant runs with the land and binds not only the lessee but his assigns whether named or not.25 Such covenants as are implied by law receive more liberal construction than express covenants. When a person assumes a liability and makes no provision for accident the law presumes him to take the risk upon himself, and he will be held to make good his contract although he is deprived of the benefits of the premises by inevitable accident. Thus we have already seen that a covenant to repair and keep in repair will bind the lessee to rebuild in case of destruction by fire or other accident; and where there is no saving clause the lessee will be bound to continue paying rent after destruction of the buildings by fire or other casualty. For this reason there is usually a proviso inserted to protect the lessee, which relieves him from the payment of rent where the building is destroyed by fire or other casualty, without any fault or neglect on his part.

§ 6. Same-Same-Covenant to pay taxes.-In the absence of any express covenant in the lease the lessor is bound to pay the taxes, 28 and if he fails to do so the lessee may for his own protection, do so when demanded, and charge the same to the account of rent, and if the amount of taxes thus paid by the lessee exceeds the rent due; the excess may be recovered from the lessor as money paid to his use.30 A covenant requiring the lessee to pay

25

Dolph v. White, 12 N. Y. 296; Main v. Feathers, 21 Barb. 646; Harmony Lodge v. White, 30 Ohio St. 569; Sutliff v. Atwood, 15 id. 186, 194. In Webb v. Russell Kenyon, C. J., said: "It is not sufficient that a covenant is concerning the land; but in order to make it run with the land there

must be privity of estate between the covenanting parties." In that case the covenant to pay rent was to one who, it was held, had no legal interest in the

taxes on the leased premises is frequently inserted in a lease. In such cases he becomes personally responsible for the taxes assessed against the premises, and on his failure to pay them, the lessor can recover the amount assessed, although he may not himself have paid such tax;31 but a covenant to pay taxes of every name and kind that shall be assessed against the premises, will not obligate the lessee to pay assessments for benefits accruing from street improvements, and the like. In those cases, however, where there are words evincing an intention of the parties to the lease to extend the liability, the lessee will be held liable for benefits. 33

32

31 Rector, etc., of Trinity Church v. Higgins, 48 N. Y. 532. See Rector, etc., of Trinity Church v Vanderbilt, 98 id. 170, 174; Sage v. Truslow, 88 id. 240, 244. In the case of Rector, etc., of Trinity Church v. Higgins, supra, there was a covenant in a lease whereby the lessee agreed to bear, pay and discharge all taxes and assessments which shall be imposed upon the demised premises during the term, and the court held the covenant broken by neglect to pay taxes or assessments duly imposed, holding that it is not simply a contract of indemnity, but by it the tax or assessment, as between the parties, becomes the debt of the lessee; that the lessor could therefore maintain an action thereon without first paying the tax or assessment, and as damages he is entitled to recover the amount of such tax or assessment. The court say that "the rule may be definitely drawn from numerous cases, that where indemnity only is expressed, damages must be sustained before a recovery can be had; but a positive agreement to do an act which is to prevent damage to the plaintiff will sustain an action act." Citing Gilbert v. Wiman, 1 N. Y. 550; S. C., where the defendant neglects or refuses to do such 49 Am. Dec. 359; McGee v. Roen, 4 Abb. Pr. 8;

Den. 321; Aberdeen v. Blabkmar, 6 Hill, 324; Thomas v. Allen, 1 id. 145; Port v. Jackson, 17 Johns. 239, 479; Webb v. Pond, 19 Wend. 423; Mann v. Eckford's Exrs., 15 id. 502, 514; Chance v. Hinman, 8 id. 453; Matter v. Negus, 7 id. 499,

26 See ante, § 1.

501.

"Prettyman v. Walston, 34 Ill. 175, 191.

(N. S.) 148; S. C., 43 Eng. C. L. 672; Barrett v. Bedford, 8 Durnf. & E. 602: Southall v. Leadbetter,

20 Taylor v. Zamira, 6 Taunt. 524; S. C., 1 Eng. C. L. 736.

well v. Whitworth, L. R., 2 C. P. 326.

33 See Blake v. Baker, 115 Mass. 188; Curtis v. Pierce, id. 168; Codman v. Johnson, 104 id. 491.

§ 7. Same-Same-Covenant to insure premises.— It is not infrequently the case that a covenant is inserted in the lease requiring that the lessee shall keep the premises insured in a given amount, and in case of loss to apply the proceeds to the rebuilding or repairing of the premises. Such a covenant is broken if the lessee permits the premises to remain uninsured for any time, however short.34 And where such covenant requires the insurance to be taken out in the name of the lessor, an insurance taken in the name of the lessee will not constitute a compliance with the covenant. 35 In other cases the insurance is required to be taken out in the joint names of the lessor and the lessee, and in case of fire the insurance money to be applied in rebuilding or repairing the premises. When in this form the covenant becomes a real covenant and runs with

the land; but a mere covenant to insure, which does not provide for the application of the money arising from the policy of insurance in case of fire, is merely a personal covenant, extending only to the covenantor and his personal representatives, and gives to the lessor no right to receive the insurance money from the insurer. In some States, however, it is provided by statute, that the insurance money in such cases shall be applied to repairing and rebuilding the premises injured or destroyed, and in

these States such covenant is real and runs with the land, 36

§ 8. Same-Same-Covenant as to use of premises. -It is usual to insert in a lease a covenant restricting the uses to which the premises may be put. In some it is an affirmative covenant to use the premises for a particular purpose, while in others it is a negative covenant not to carry on a particular trade, or any trade that shall be offensive to the neighbors. Such a covenant is real and runs with the land, and its breach may work a forfeiture of the lease, or a court of equity may enforce the covenant and by injunction regulate or restrain the use of the premises demised. In the absence of a special provi- | sion or recital of use in the lease, there is no implied covenant to use the premises demised for a particular purpose; but where there is a covenant to use the premises in a particular way, or for a particular purpose, this covenant will be specifically enforced."

38

34 Doe v. Shewin, 3 Campb. 135.

35 See Sherwood v. Harral, 39 Conn. 333; Keteltas v. Coleman, 2 E. D. Smith, 408.

36 Thomas v. Kapff, 6 Gill. & J. 372; Masury v. Southworth, 9 Ohio St. 340.

37 See Brouwer v. Jones, 23 Barb, 153.

3 Gillian v. Norton, 33 How. Pr. 373; Ambler v. Skinner, 7 Robt. 561, 563; Howard v. Ellis, 4 Sandf. 369. See Steward v. Winters, 4 Sandf. Ch. 587. 39 Brugman v. Noyes, 6 Wis. 1.

40 Steward v. Winters, 4 Sandf. Ch. 587.

Should the lessee exer

A covenant not to carry on certain specified trades will not be considered as prohibiting any trade not specified; but a mere retail in the lease, of the purpose for which the premises are let has been In those held to constitute a covenant as to use. cases where the mode of occupation is fixed by the lease, or where the intention of the purpose is expressed therein so as to show the intention to confine the leased premises to a special use, then the lessee will be prohibited from converting the property to other purposes. 41a cise a forbidden trade, or use the premises in a manner prohibited, by which the lease is forfeited, the mere fact that the lessor suffers the trade to be carried on, or passively permits the prohibited use, this does not amount to a waver of the forfeiture; but should he permit the tenant to go on and make improvements upon the premises which are necessary in order to adapt them to the trade or use to which it is put, this will be evidence of his consent to the premises being so used and occupied.42

§ 9. Same-Same-Covenant not to assign or underlet.-One of the usual covenants inserted in a lease is that the lessor will not assign or sublet without the consent of the lessor. Such covenants, however, are not favored by law, because looked upon as prejudicial to the interests of commerce. They are strictly construed by the courts. This disfavor of restrictions being placed upon estates, either as to use or alienation, has led the courts to allow subletting where the lease simply prohibits assignment, and to allow an assignment where the lease simply prohibits sub-letting. It has been said that a 41 Simons v. Farren, 1 Bing. N. C. 126; S. C., 27 Eng. C. L. 572.

43

41a Maddox v. White, 4 Md. 72; S. C., 59 Am. Dec. 67; Steward v. Winters, 4 Sandf. Ch. 587. See Reed v. Lewis, 74 Ind. 433; S. C., 39 Am. Rep. 88, 90.

42 Doe, d. Sheppard, v. Allen, 3 Taunt. 78; S. C., 12 Rev. Rep. 597; Griffin v. Tompkins, 42 L. T. 359.

48 Parker v. Copeland, 4 Mich. 528, 660; Field v. Mills, 33 M. J. L. 254; Collins v. Hasbrouck, 56 N. Y. 157; S. C., 15 Am. Rep. 407; Lynde v. Hough, 27 Barb. 415; Jackson, ex d. Weldon, v. Harrison, 17 Johns. 66; Jackson, ex d. Stevens, v. Silvernail, 15 id. 278; Hargrave v. King, 5 Ired. Eq. 430. In Greenway v. Adams (12 Ves. 395), it was held that a covenant not to sublet was violated by an assignment, and this opinion was spoken of approvingly by the Supreme Court of New Jersey in a dictum in the case of Den, ex d. Bockouver, v. Post (25 N. J. L. 285, 291), but was disapproved in the subsequent case of Field v. Mills (33 id. 254). The general rule is that a right to sublet exists in the lessee in the absence of a stipulation to the contrary, and such sub-lessee may use the premises