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PROVISIONS FOR A RE-ENTRY.

187 within the period given by the lease, and that if he, the lessee, did not repair within such period, he, the lessor, would perform the repairs and charge the lessee with the expense, and the premises were not, in fact, repaired by either party; it was held, that the lessor having elected to perform the repairs and charge the lessee with the expense, could not proceed to recover the premises as on a forfeiture. Doe v. Lewis, 5 Ad. & Ell. 277. A covenant for a landlord to be allowed to come into a house to see the state of repair at "convenient times,” is not broken by his not being allowed to go into some of the rooms, if the tenant had no previous notice of his coming. Doe v. Bird, 6 C. & P. 195.

Where a lease contained a proviso for re-entry, if the lessee committed waste to the value of £10, and the tenant pulled down some old buildings of more than £10 value, and substituted others of a different description, it was held that the waste contemplated in the proviso was waste producing an injury to the reversion; and that it was a question for the jury whether such waste had been committed. Doe v. Bond, 5 B. & C. 855.

Here the lease contained a proviso that the tenant should not carry any hay, etc., off the premises, under a certain penalty, and a clause followed, enumerating all the covenants except the above, and provided that upon breach of any of the covenants the lessor might re-enter; it was held, notwithstanding the penalty and the omission of the covenant in the enumeration, the clause of re-entry applied. Doe v. Jepson, 3 B. & Ad. 402; Adams on Ejectment, 211.

Where one of the conditions of the lease was, that the lessee should pay all taxes, etc., held, that the lessor had no right to re-enter for a breach of the condition, without showing a demand of payment of the tax within the period required by law, in order to create a forfeiture. Jackson v. Harrison, 17 Johns. (N. Y.) 66.

§ 21. Provisions for a Re-entry, etc.-Covenants and Conditions. The lease must contain a provision for the reentry of the landlord upon the breach of a covenant. This provision enables the lessor, his heirs or assigns, in case of a breach of the condition or covenant, to re-enter upon the demised premises and eject the tenant, leaving both parties in the same situation as if the lease had never been made.' But the grantor and his heirs, however, may still enter and take advantage of a breach of a condition or other common law forfeitures by ejectment without this clause. The rule is different in case of the breach of a covenant; in the absence of the provision for a re-entry, the lessor's only remedy is an action for damages. In many States this distinction is

'Smith v. Blaisdell, 17 Vt. 199; Johns v. Whitley, 3 Wils. 127; Doe v. Phillips, 2 Bing. 13.

Doe v. Watt, 1 Mann. & R. 694; Wigg v. Wigg, 1 Atk. 383; Taylor on Landlord & Tenant, § 281.

Fox v. Brissac, 15 Calif. 223; 2 Blackstone's Com., 155; Den v. Post, 1 Dutch. (N. J.) 285; Pells v. Brown, 2 Cro. 591; 11 Mod. 61; 1 Atk. 233.

abolished by statutes regulating the method of determining tenancies in cases of the failure of the tenant to comply with the provision of the lease.

A provision for a re-entry taken from an ordinary lease of lands:

And the party of the second part covenants with the party of the first part, that at the expiration of the term of this lease he will yield up the premises to the party of the first part without further notice, in as good condition as when the same were entered upon by the party of the second part, loss by fire or inevitable accident and ordinary wear excepted.

It is further agreed by the party of the second part, that neither he nor his legal representatives will underlet said premises or any part thereof, or assign this lease without the written assent of the party of the first part had thereto.

And it is further expressly agreed between the parties hereto, that if default shall be made in the payment of the rent above reserved, or any part thereof, or any of the covenants or agreements herein contained to be kept by the party of the second part, it shall be lawful for the party of the first part or his legal representatives, into and upon said premises or any part thereof, either with or without process of law, to re-enter and re-possess the same at the election of the party of the first part, and to distrain for any rent that may be due thereon upon any property belonging to the party of the second part. And in order to enforce a forfeiture for non-payment of rent it shall not be necessary to make a demand on the same day the rent shall become due, but the failure to pay the same at the place aforesaid or a demand and a refusal to pay on the same day, or at any time on any subsequent day, shall be sufficient; and after such default shall be made, the party of the second part and all persons in possession under him shall be deemed guilty of a forcible detainer of said premises under the statute.

§ 22. Covenants and Conditions.-Many of the rights and liabilities of both landlord and tenant arise out of the covenants between them. Some of these covenants are incidental to the relation of landlord and tenant and are obligations independent of positive stipulation, while others are the subject of express contract alone. Such rights may also be qualified or limited by some conditions annexed to the estate, which may either operate as a contract or terminate the estate according to circumstances.'

A covenant is an agreement between two or more persons by an instrument under seal to do or not to do some particular thing. It can only be created by dced.'

$244.

1 Taylor on Landlord and Tenant, Salk. 197; 1 Roll. Abr. 517; Day v. Brown, 1 Ham. (Ohio) 346; Coke on Littleton, 230 b; Halsey v. Reed, 1 Paige, Ch. (N. Y.), 416.

2 Taylor on Landlord and Tenant, 245; Rande v. C. & D. Canal Co., 1 Hair. (Del.) 283; Green v. Horne, 1

FORFEITURES UNDER AGREEMENT FOR LEASES.

189

A condition is a qualification annexed to an estate by the grantor whereby the estate may be enlarged or defeated upon an uncertain event.'

§ 23. Forfeitures Under Agreement for Leases.-The rules of law apply to a person holding the possession of lands under an agreement for a lease the same as if he were holding under a written lease where the agreement specifies the cov enants and conditions to be inserted in the lease and that there shall be a re-entry for a breach of them."

By a memorandum of agreement, in consideration of the rent and conditions thereinafter mentioned, A was to have, hold and occupy, as on lease, certain premises therein specified, at a certain rent per acre. And it was stipulated that no buildings should be included or leased by virtue of the agreement; and it was further agreed and stipulated that A should take at the rent aforesaid, certain other parcels, as the same might fall in; and lastly, it was stipulated and conditioned that A should not assign, transfer or underlet, any part of the said lands and premises otherwise than to his wife, child or children. It was held, that by the last clause a condition was created, for the breach of which the lessor might maintain an ejectment. Doe v. Watt, 8 B. & C. 308.

But in an agreement to let, in which there was no clause of entry, the following stipulation was held to be a covenant, and not a condition operaing in defeasance of the estate: "It is also hereby agreed, and clearly understood, that in case the said A. W., or his heirs, etc., should want any part of the said land to build or otherwise, or cause to be built, then the said T. R. or his heirs, etc., shall and will give up that part or parts of the said lands as shall be requested by the said A. W., by his making an abatement in proportion to the rent charged, and also to pay for so much of the fence, at a fair valuation, as he shall have occasion from time to time to take away, by his giving or leaving six months' notice of what he intends to do." Doe v. Philips, 2 Bing. 13; Adams on Ejectment, 212.

§ 24. Construction of Covenants for Re-entry.-Provisos in leases for re-entry are construed strictly with respect to the parties who may take advantage of them, and only include the persons who are expressly named. A power for a person to enter will not extend to his executor. And it seems also, that if a lessee covenant with his lessor that he will not assign, etc., a covenant so framed will not extend to his executors or administrators, but if the executors or administrators be mentioned in the clause, they will be bound by it.

1 Taylor on Landlord and Tenant, $271; 4 Kent's Com. 121; Coke on Littleton, 214 b.

* Doe v. Breach, 6 Esp. 106; Adams on Ejectment, 212.

3 Adams on Ejectment, 214; Hassel v. Gowthwaite, Willes, 500.

When a power of re-entry for breach of covenant is reserved, and a lease and the possession descends to co-parceners at common law, it seems that one alone can not maintain ejectment for breach of the covenant. Doe v. Lewis, 5 Ad. & E. 277.

Where a lease contained a covenant that the lessee, his executors or administrators (without mentioning assigns), should not underlet, and the lessee become bankrupt, and his assignees assigned the premises to a third person, who re-assigned to the bankrupt (having obtained his certificate), who underlet them, it was held that the lessee, having been discharged of all his covenants by his bankruptcy, the underletting by him was in the character of assignee, and, therefore, no forfeiture of the lease. Doe v. Smith, 1 Mars. 359.

25. Who May Take Advantage of the Forfeiture.-The person who is entitled to the reversion of the estate at the time the forfeiture is committed, is, as a general rule, the party who may take advantage of the forfeiture.

To enable a reversioner to take advantage of a forfeiture, it is necessary that he should have the same estate in the lands at the time of the breach, as he had when the condition was created; and extinguishment of the estate in reversion, in respect of which the condition was made, extinguishing the condition also.'

Where a lease was made for a hundred years, and the lessee made an under-lease for twenty years, rendering rent, with a clause of re-entry, and afterward the original lessor granted the reversion in fee, and the grantee purchased the reversion of the term, it was holden that the grantee should not have either the rent, or the power of re-entry, for the reversion of the term to which they were incident was extinguished in the reversion in fee. Threr v. Barton, Moore, 94; Webb v. Russell, 3 T. R. 393, 402; Adams on Ejectment, 213.

When the condition is, that the lessee will not do any particular act without leave from his lessor, if leave be once granted, the condition is gone for ever; for the condition is to be taken strictly, and by the license it is satisfied. Dumpor v. Syms, Cro. Eliz. 815; S. C., 4 Co. 119.

When a condition is entire, a license to dispense with a part of the condition is a dispensation of the whole. Thus, where a lease was made to three, on condition that neither they, nor any of them, should alien without license of the lessor, and the one by license alicned his part, and afterward the other two without license aliened their parts, it was adjudged the lessor could not enter, for the condition was dispensed with. Dumpor v. Syms, Cro. Eliz. 815; S. C., 4 Co. 119.

Where the lease contains a clause, that the lessee shall not assign without leave from his lessor, the lessee, under a license to assign part of the premises, may assign the whole without incurring a forfeiture. But the license must be such as is required by the lease; and therefore, where

1 Dunpor's case, 4 Co. 120; Adams on Ejectment, 213; Fenn v. Smart, 12 East, 444.

FORFEITURES MAY BE WAIVED.

191

the lease required the license to be in writing, a parol license was held to be insufficient. Roe v. Harrison, 2 T. R. 425; Seers v. Hind, 1 Ves. jun. 294; Adams on Ejectment, 214.

§ 26. Forfeitures May Be Waived.-Where a forfeiture has accrued upon a clause of re-entry for rent in arrear, the forfeiture will be waived if the landlord do any act after the forfeiture which amounts to an acknowledgment of a subsisting tenancy, as if he receives rent due at a subsequent quarter or under the old rule distrain for that in respect of which the forfeiture accrued.' It is curious to note the old rule of law in relation to a distress made for rent due and unpaid. The distress is only one mode given by law for the collection of a debt, but if the landlord insists upon collecting what is due him prior and up to the time of the forfeiture, he waives his right to insist upon the forfeiture. It does not appear to be good law, and yet Lord Coke said: "If the lessor distrains for the same rents for which the demand was made, he had thereby affirmed the lease, for after the lease determined he could not distrain for the rent."

$27. Waiver of the Forfeiture for Breaches of Condition. The forfeiture of a lease, by breach of a covenant or condition, may be waived in like manner as a forfeiture for non-payment of rent or a notice to quit; if the landlord do any act with knowledge of the breach which can be considered as an acknowledgment of a tenancy still subsisting; as for example, if he receives rent accruing subsequently to a forfeiture, unaccompanied by circumstances which show a contrary intention.'

Where a lease contained covenants to keep the premises in repair, and to repair within three months after notice, and a clause of re-entry for breach of any covenant, and the premises being out of repair, the landlord gave notice to repair within three months; held, that this was a waiver of the forfeiture incurred by breach of the general covenants to keep the premises in repair, and that the landlord could not bring ejectment until after the expiration of the three months. Doe v. Meux, 4 Barn. & C. 606.

A landlord will not lose his right to re-enter, by merely lying by, however long the period, and witnessing the act of forfeiture; but it seems that if, with full knowledge thereof, he permits the tenant to expend money in improvements, it is a circumstance from which the jury may presume a waiver. Doe v. Allen, 3 Taunt. 78.

'Jackson v. Sheldon, 5 Cow. (N. Y.) 448.

Penant's case, 3 Co. Reps. 64; Adams on Ejectment, 160; Coke on Littleton, 211b

Adams on Ejectment, 216; Fox v. Swan, Styles, 482; Goodright v. D:vids, Cowp. 803; Doe v. Pritchard, 5 B. & Ad. 7C5.

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