Lynde v. Hough

By the Court, Emott, J. The lease and counterpart com tain provisions in regard to letting or underletting which are substantially identical. In the instrument signed by the lessor the phraseology is, the premises shall not “ be let or underlet without the written consent of the landlord, under the penalty of forfeiture and damages.” In the counterpart signed by the lessee he “ engages not to let or underlet the whole or any-part of said premises without the written consent of the landlord, under the penalty of forfeiture and damages.” The appellants contend that these words do not make a condition, the breach of which would terminate the lease. But I am satisfied that we must construe the word “ forfeits ure” to mean forfeiture of the term and estate. There is no other sensible meaning which can be attached to it, and while courts will construe strictly clauses which create conditions and go to defeat estates, that does not mean that we have a [421] right to disregard the obvious intentions of parties, or the reasonable sense of their words, in such an instrument as this, although they may be inartificially expressed. It is true that when there is a question whether a clause in a deed or a loase is a covenant or a condition, the courts have leaned strongly against construing it as a condition. But that is not the question here. The question is whether the words “ on penalty of forfeiture” are sufficiently clear and precise to express the intentions of the parties, that a breach of the agreement should work a forfeiture of the lease. There is no dispute that the previous words make a covenant not to “ let or underlet;” and I think there is no doubt that the parties intended by the use of the phrase in question to make the breach of that covenant a forfeiture of the lease. These words are not a necessary part of the covenant, nor can they have any effect -or operation unless they make a condition. In such a case, we have not the right to disregard their intention, when it is manifest, or to apply to such an instrument as this, any rule more rigid than to require that the agreement -of the parties should be intelligibly expressed. The rule of the law has always been that the same precise words of condition are not required in leases for years as in conveyances of freehold estates. (2 Co. Litt. 204 a.) Words similar to those used in the lease now before us received a similar construction, and upon these principles, in a very ancient case which is cited and approved by Coke, (ub. supra.) But upon the other questions in the case, I think the court below was wrong. In order to show a breach of this covenant, and, a consequent forfeiture, the plaintiff gave some evidence tending to show an underletting of a part of the premises, but it was of a very inconclusive character. An occupation of certain rooms by the defendant Newcomb, was proved, but in what capacity, or under what authority, did not appear. This occupation was also subsequent to the assignment of the lease by the lessee to Henry B. Hough, and if the breach now alleged to have consisted in an under422 letting to Newcomb, by Edward 0. Hough, the orignal lessee, which would, undoubtedly, if proved, have made out the plaintiff’s case, that should have been left to the jury, on this evidence, to determine as a question of fact. If there was a demise to Newcomb but made by an assignee of the original tenant and not by Edward 0. Hough who made the covenant in question, then I think there was no breach or. forfeiture, unless the assignment of the whole term forfeited the lease ; which probably was the view taken by the court below, and which I will consider presently. The covenant is both collateral and merely personal. It is the engagement of the lessee for himself alone, not naming his assigns, whether actual or legal. And if he had a right to assign the whole term his assignee takes the estate without the condition, as not being bound by the covenant. This is a legitimate consequence of the rule in Dumpor’s case (4 Rep. 119,) which, however it may have been wondered at since Lord Mansfield’s time, and even before, has never been denied. It is also a rule which has been held expressly in similar cases, for such conditions have never been favored. (Cro. Jac. 398. Whidicot v. Fox, 2 Cruise’s Dig. 7. Dyer, 60 a, pl. 8. Moore, 4, pl. 40. 4 Kent’s Com. 130.) This leaves the question whether the assignment of this lease, made by the lessee to the defendant Henry R. Hough, on the 1st of May, 1853, was a breach of the condition, and a forfeiture of the term. The city .judge Undoubtedly considered it to be so, in instructing the jury that the facts proven warranted them in finding for the plaintiff; that there was no conflict of evidence and the case was resolved into a mere question of law. The judgment of Sir William Grant, M. R. in Greenaway v. Adams, (12 Ves. 395,) is cited to sustain this view. That was an action for a specific performance, and the question was whether the lessee of a public house who had contracted to sell and assign his lease could do so without the consent of the lessor. The lease contained a condition that the lessee should not “let, set or demise” the [423] premises without consent. It was strongly insisted, on the argument at the rolls, that the word “ set” included an assignment or conveyance of the whole term, and I understand the master of the rolls to adopt and decide the case upon that view. And the words of the covenant in that case could not have distinct operation and effect without reference to an assignment. (Crusor v. Bugby, 3 Wils. 234.) It is true, the learned judge argues that a landlord who uses words indicating a design to forbid underletting must mean to forbid the tenant parting with his whole interest. But I cannot regard this as the point of view in which we are bound, or indeed have a right, to look at the question. The question is not whether the landlord could reasonably be supposed, after he had forbidden an underletting, to have no objections to an assignment of the whole term. When we reach this part of the case and come to the construction of this clause in the lease, the rules to which I have adverted,- and which are contended for by the defendants, unquestionably apply. The extent and meaning of the covenant or condition, and the fact of a breach, are questions strictissimi juris, and a plaintiff to defeat an estate of his own creation by means of such a condition, must bring the defendant clearly within its letter. (See Livingston v. Stickles, 8 Paige, 398; S. C. in error, 7 Hill, 253; Jackson v. Silvernail, 15 John. 278; Jackson v. Harrison, 17 id. 66.) The question is whether on a strict and literal construction of the covenant the act of the defendant is within its terms, and so forbidden. I think the use of the word “ set” in the covenant in the case of Qreenaxoay v. Adams, a word which includes and in its primary sense refers to a conveyance of the entire estate or thing, distinguishes that case from this. And without impugning that decision, I do not consider it an authority on the present question. At any rate I cannot entertain any doubt that in an action of ejectment for the breach of a condition we must hold that the words “ let and underlet” mean a demise or underletting and not an assignment of the whole [424] interest. In the case of Roe dem. Gregson v. Harrison, (2 T. R. 425,) the word “ let” which was coupled there with “set” and “ assign over,” was construed to mean underlet, and the whole covenant held to forbid an underlease as well as an assignment. It seems plain, to me that the literal meaning of the word let does extend to an assignment of the term, and if so we have no' right to speculate upon the question whether it would be reasonable or otherwise for a landlord to forbid an underlease and not an assignment. It is enough that by a strict and literal interpretation of this covenant, it does not include such an assigment as was proved on the trial. [Dutchess General Term, April 14, 1857. S. B. Strong, Birdseye and Emott, Justices.] The judgment' must be reversed, and a new trial ordered; the costs to abide the event.