Construction of the covenant were, that the lessee, "his executors, administrators, covenants not or assigns, should not, nor would, at any period during the term, to assign. Assigns. assign over, or otherwise part with that indenture, or the demised premises, to any person, &c. except by his, or their last will and testament, without licence, &c." and the lessee died, and bequeathed the lease to his widow, and made her and others his executors, and there was no assent to the bequest to the widow; it was held that the executors could not assign without licence. (a) But in a case where the question arose, whether executors were warranted in disposing of a lease as assets of the testator, in which there was a proviso against alienation by the lessee, Lord Thurlow, C. said, "If A. lets a farm to B. with a covenant not to alien, and B. dies, may not his executors dispose of the term? I think it has been determined that they may, and I have always taken it to be clear law. It is an alienation by the act of God. I remember Lord Camden entered into the question much in the same way. He took it to be clear law that an alienation by death, could not be a forfeiture. In the case of a lease for years to A. it goes to his executors, not by way of limitation, as in the case of remainders 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 not mean to lay it 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." (b) It is said, that a covenant not to assign generally being quite personal and collateral, can only affect the lessee himself, and is so far from being meant to reach the assigns, that it is inserted to prevent there ever being any assigns at all (c); but where the lessee covenants for himself, and his assigns not to assign, there may, perhaps, exist cases in which such a covenant shall have operation. Thus in a lease upon condition, that neither the lessee nor his assigns should grant, a grant by the administrator was held to be a breach of the condition (d); and so where the lessee covenants for himself and his assigns, not to assign, ex (a) Lloyd v. Crispe, 5 Taunt. 249, 254. (b) Seers v. Ilind, 1 Ves. J. 296. Shep, Tonch. 144. (c) Bally v. Wells, Wilmot's cases, 351. 44. (d) Dyer, 6 b. (margin.) See Moor, cept to a particular person, it might be contended that this cove- Construction of nant would extend to prevent the latter from assigning. (a) And covenants not to so where a man covenants for himself and his assigns, not to assign to a particular person, it is said by Wilmot, C. J. that such a covenant would bind the assignee, for that it falls within every rule laid down in Spencer's case. (b) assign. Where the word assigns is used in a proviso, or covenant not Assignment by to assign, the courts have construed it to mean voluntary assigns, operation of law. as contradistinguished from assigns by operation of law, and have held that the immediate vendee from the assignee in law is not within the proviso. (c) An assignment, by operation of law, therefore, will not amount to a forfeiture. Thus the sale of a lease under a bonâ fide execution against the lessee is not a forfeiture of a condition not to assign; but if the tenant give a warrant of attorney to his creditor for the express purpose of enabling him to take the lease in execution, this will be a fraud and a breach of the condition. (d) So, if the lessee become bankrupt, an assignment under the commission is no breach of a condition or covenant not to assign. (e) And where a lease contained a proviso, that the lessee, his executors, or administrators, should not underlet, &c.; and the lessee became bankrupt, and the lease was assigned under the commission, and the lessee obtained his certificate, and the premises were re-assigned to him, after which he underlet, it was held that such underletting was no forfeiture of the lease. (f) The lessor may however guard against such assignments, by inserting a proviso for re-entry upon the tenants committing an act of bankruptcy, whereon a commission shall issue (g), or by making the lease depend on the actual occupancy of the premises by the lessee. (h) It seems doubtful, whether a devise by will is a breach of a Whether a de (a) Thornhill v. King, Cro. Eliz. 757. Dyer, 152, a. Prest. Shep. Touch. 145, but see Dumpor's case, 4 Rep. 120, b. Brummel v. Macpherson, 14 Ves. 176. Com. Dig. Condition, (Q). (b) Bally v. Wells, Wilmot's cases, 352. (c) Doe d. Goodbehere v. Bevan, 3 M. and S. 358. (d) Doe d. Mitchinson v. Carter, 8 T. R. 57. Doe d. Lord Stanhope v. Skeggs, cited 2 T. R. 134. (e) Goring v. Warner, 2 Eq. Ca. Ab. 100. Philpot v. Hoare, Atk. 219. Amb. 480, S. C. Doe d. Goodbehere v. Bevan, 3 M. and S. 353. (ƒ) Doe d. Cheere v. Smith, 1 Marsh. $59, 5 Taunt. 795, S. C. (g) Roe d. Hunter v. Galliers, 2 T. R. 133. (h) Doe d. Lockwood v. Clarke, 8 East, 185. Doe d. Duke of Norfolk, v. Hawke, 2 East, 481. vise be a breach. Construction of covenant, or condition not to assign. The weight of authorities covenants not to appears to be in favour of the affirmative. (a) assign. Where a tenant covenanted, "not to set, assign, transfer, or Pledging the otherwise part with the premises demised, or the lease," it was held that depositing the lease as a security was not a breach of the covenant. (b) deed. Under leases. Where the lessee covenanted "not to assign, transfer, or set over, or otherwise do, and put away the indenture of demise or the premises thereby demised, or any part thereof," an underlease has been held not to be a breach of the covenant. (c) But where the proviso in a lease was "not to set, let, or assign over the said demised premises, or any part thereof," an under-lease was considered to be within the terms of the proviso. (d) And where a lease contained a proviso for re-entry in case the lessee "should demise, lease, grant, or let the premises, or any part or parcel thereof, or convey, alien, assign, or set over the indenture, or his estate therein, or any part thereof for all or any part of the term," and the lessee entered into partnership with A. and agreed that he should have the use of a back-room and other parts of the premises exclusively, the lease was held to be forfeited. (e) So where in a lease for years the proviso was "not to assign, or otherwise part with the indenture of lease, or the premises thereby demised; or any part thereof, for the whole or any part of the term thereby granted," it was held by Lord Ellenborough that this condition was broken by an agreement to grant a lease of the premises for the residue of the term, reserving a few days, under which possession was given. (ƒ) But a covenant not to underlet is not broken by admitting a lodger for above a twelvemonth into the exclusive possession of a room. The covenant, said Lord Ellenborough, can only extend to such under Horton v. Hortou, (a) That it is a forfeiture, see Berry 226. (c) Crusoe d. Blencowe v. Bugby, 3 Wils. 234. 2 W. Black. 766, S. C. (d) Roe v. Harrison, 2 T. R. 425. A lease by the lessee for the whole term amounts to an assignment, though the rent be reserved to the lessee, and a power of re-entry given to him. Palmer v. Edwards, Dongl. 186, n, but see Poultney v. Holmes, 1 Str. 405. (e) Roe d. Dingley v. Sales, 1 M. and S. 297. (f) Doe d. Holland v. Worsley, 1 Campb. N. P. C. 20. letting as a licence might be expected to be applied for, and Construction of who ever heard of a licence from a landlord to take in a lod- covenants not to ger (a)? assign. ed. If the lessor licence the lessee to assign the premises, the How discharg covenant or condition not to assign without licence, is wholly discharged, and all subsequent assignees may assign without licence (b); and a licence to alien part of the land dispenses with the condition as to the residue. (c) Whether the licence be general, or particular, as to one particular person, the condition is gone, and the assignee may assign without further licence. (d) Where a demise is to three, upon condition that neither they, nor any one of them, shall alien without licence, and the lessor licences one of them to alien, the condition is determined as to the other two. (e) Where the lease requires the licence to be in writing, a parol licence is insufficient. (f) covenants run ning with the land. In the leading case upon this subject (g), the following rules Construction of are laid down with regard to the construction of covenants running with the land. Where the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is quodammodo annexed, and appurtenant to the thing demised, and shall go with the land, and shall bind the assignee, though he be not bound by express words; but when the covenant extends to a thing which is not in being at the time of the demise made, it cannot be appurtenant or annexed to the thing which has no being; as if the lessee covenants to repair the houses demised to him, during the term, that is parcel of the contract and extends to the support of the thing demised, and therefore is quodammodo annexed, and appurtenant to houses, and shall bind the assignee although he be not expressly bound by the co+ venant. But if the lessee had covenanted for him and his assigns, that they would make a new wall upon some part of the thing (a) Doe d. Pitt v. Laming, 4 Campb. 173, and see Whitchcot v. Fox, Cro. N. P. C. 77. 15 Ves. 265. Jac. 398. (b) Dumpor's case, 4 Rep. 119. Dumpor v. Syms, Cro. Eliz. 815, S. C. Walker v. Bellamy, Cro. Jac. 102. (c) Ib. quare whether a licence to nuderlet dispenses with the condition altogether. See 1 Saund. 288, new notes. (d) Brummel v. Macpherson, 14 Ves. (e) Leeds v. Crompton, cited 4 Rep. 120, a. 1 Rol. Ab. 472, S. C. Noy. 32. (f) Roe d. Gregson v. Harrison, 2 T. land. Construction of demised, then for as much as it is to be done upon the land decovenants run- mised, it shall bind the assignee; for although the covenant does ning with the extend to a thing to be newly made, yet it is to be made upon the thing demised, and the assignee is to take the benefit of it, and therefore, it shall bind the assignee by express words. But although the covenant be for him and his assigns, if the thing to be done be merely collateral to the land, and does not touch or concern the thing demised in any sort, there the assignee shall not be charged. As if the lessee covenants for him and his assigns to build a house upon the land of the lessor, which is no parcel of the demise, or to pay any collateral sum to the lessor, or to a stranger, it shall not bind the assignee, because it is merely collateral, and in no manner touches or concerns the thing that was demised, or that is assigned over, and therefore, in such case, the assignee of the thing demised cannot be charged with it, no more than any other stranger. 1. Covenants thing in esse parcel of the de named. Where the covenant extends to a thing in esse parcel of the extending to a demise, it is quodammodo annexed and appurtenant to the thing demised, and binds the assignee though he be not named. mise, and bind- Thus a covenant to repair will bind the assignee though not ing the assignee named, for it is a covenant which extends to the support of the though not thing demised, and is therefore quodammodo appurtenant to it and goes with it (a). So a covenant to leave a certain portion of land every year for pasture, binds the assignee though not named, because it is for the benefit of the estate, according to the nature of the soil (b); and in general where a covenant relates to the improvement, melioration, and mode of cultivation of an estate, it binds the assignee though not named (c). So also, a covenant to reside constantly on the demised premises during the term, is a covenant which runs with the land, and binds the assignee without special words (d). A covenant for the payment of rent, is within the same rule (e); so a covenant to retain a portion of the rent (ƒ); and where A. being seised in fee of a mill, and of (a) Dean and Chapter of Windsor's case, 5 Rep. 24, a. Spencer's case, 5 Rep. 17, b. (b) Cockson v. Cock, Cro. Jac. 125. (c) Per Wilmot, C. J. Bally v. Wells, Wilmot's cases, 346. As to covenants to grind corn at the plaintiff's mill, see Ld. Uxbridge v. Staveland, 1 Ves. 56, Hamley v. Hendon, 12 Mod. 327, and see ante, p. 357. (d) Tatem v. Chaplin, 2 H. Blacks. 133. (e) Attoe v. Hemmings, 2 Bulstr. 281. Isherwood v. Oldknow, 3 M. and S. 382. Com. Dig. Cov. (C. 3). (ƒ) Baylye v. Offord, Cro. Car. 157. |