Childs v. Warner Bros. Southern Theatres, Inc.

BeogdeN, J. If a lessor executes a lease to a given lessee, and tbe lease provides that tbe lessee shall not convey tbe lease nor underlet tbe premises without tbe written consent of tbe lessor, and thereafter tbe lessor consents to an assignment of tbe lease, can such assignee subsequently make a valid reassignment of tbe lease Avitbout tbe consent of tbe lessor? In 1603 tbe English courts decided Dumpor’s case, which is reported in 4 Coke, 119, Smith Leading Oases (8th ed.), 95. In that case a lease was made to a lessee and the lease provided that tbe lessee or bis assigns should not alienate tbe premises to any one without special license of tbe lessors. Subsequently tbe lessors consented that tbe lessee might assign tbe lease, and in consequence thereof tbe lessee assigned to one Tubbe. It was held that tbe assignee Tubbe bad a right to assign tbe remainder of tbe term to any person whomsoever, irrespective of tbe consent of tbe lessors upon tbe ground that tbe condition in tbe lease prohibiting assignment without tbe consent of tbe lessor was entire, consequently tbe assent to assignment having once been given, tbe whole condition was wiped out, and tbe assignee was at liberty to assign tbe lease to whomsoever be pleased. In other words, if a lessor once gives bis assent to an assignment, such assent is deemed to be a waiver of tbe provision prohibiting assignment and tbe control of tbe lessor over bis property is forever gone. Tbe Dumpor case was followed in England and perhaps crossed tbe Atlantic in tbe Mayflower and took root in America because many of tbe earlier cases in tbe American courts followed tbe reasoning and applied tbe doctrine announced by tbe English courts. However, some of tbe courts, in order to avoid the application of tbe principles in tbe Dumpor case, began to draw a distinction between covenants in a lease which were single and covenants which were multiple. That is to say, if tbe covenant against assignment operated only upon tbe lessee and did not extend to bis heirs and assigns, tbe covenant or condition was said to be single; but if tbe covenant against assignment without tbe written assent of tbe lessor operated not only upon tbe lessee but upon bis heirs and assigns, the covenant is properly deemed to be multiple. Many courts took tbe position that if tbe covenant was single, Dumpor’s ease applied; but if tbe covenant was not single, Dumpor’s case did not apply. Tbe whole question is discussed and tbe authorities assembled in Investors’ Guaranty Corporation v. Thompson, 225 Pac., 590, 32 A. L. R., 1071. See, also, Spitz v. Nunn, 171 N. E., 117; Klein v. Niezer, 169 N. E., 688; Gusman v. Mathews, 163 N. E., 636. See, also, Keith v. McGregor, 259 Southwestern, 725, 36 A. L. R., 311. *336 In tbe case at bar tbe lease in tbe babendum clause expressly included tbe lessee and bis assigns. Moreover, tbe lessee and bis assigns agreed to pay tbe rent, and upon failure to pay tbe rent, tbe lessor expressly reserved tbe right of reentry upon tbe premises. Without entering into any discussion of tbe distinctions which may exist between single and multiple covenants and tbe great learning with which various views are elaborated, it is deemed sufficient to say that a reasonable construction of tbe lease involved in this case leads to tbe conclusion that tbe restriction against assignment and subletting operated upon tbe heirs and assigns of tbe lessee as well as upon tbe lessee himself. Tbe covenant to pay rent is continuous in its nature, and such covenant is binding by express provision upon tbe assigns of tbe lessee, and all persons occupying tbe premises under tbe assignment from tbe lessee were charged with notice of tbe conditions imposed by tbe writing under which they held title to tbe premises. Therefore, we bold that by consenting to one assignment tbe lessor did not waive the conditions of tbe lease and did not consent that thereafter any subsequent assignee could turn bis property over to tbe use and occupancy of any undesirable or irresponsible person without bis approval. Indeed, when tbe defendant notified tbe plaintiff of its purpose to reassign tbe lease, tbe plaintiff gave express notice that it would still bold tbe defendant liable for tbe rent. Krider v. Ramsay, 79 N. C., 354; Alexander v. Harkins, 120 N. C., 452, 27 S. E., 120; Garbutt & Donovan v. Barksdale-Pruitt Junk Co., 139 S. E., 357; Millinery Co. v. Little-Long Co., 197 N. C., 168, 148 S. E., 26. Affirmed.