Jackson ex rel. Stevens v. Silvernail

Platt, J. delivered the opinion of the court. The plaintiff proved title under Robert Livingston. As to 18 acres 2 roods and 24 perches, part of the land in possession of defendant, the plaintiff’s right to recover is undisputed, and as to the residue, a verdict for the plaintiff was taken, subject to the opinion of the court upon the facts stated in the case. The only question is, whether a forfeiture has been incurred, or whether the covenant,,-on the part of the lessee, not “ to sell and dispose of, or assign his estate in the said de* mised premiseshas been violated ? The plaintiff’s claim is stricti juris; and to entitle him to recover, on the ground of forfeiture, he must bring his case within the penalty, on the most literal and rigid interpretation of the covenant. In the case of Crusoe, ex dem. Blencowe, v. Rugby (3 Wils. 234) the lessee, in a lease for 21 years, covenanted not “ to assign, transfer, or set over, or otherwise do or pul away the premises, or any part thereof,” without permission ; and then made a lease to a stranger, for 14 years, of the same premises, and it was held no breach of the covenant, on the ground that the demise for 14 years, was an under-lease, and not an assignment. (Harg. Co. Litt. 308. a. Strange, 405.) In the case of Roe, ex dem. Gregson, v. Harrison, (2 Term Rep. 425.) the lessee covenanted that neither he nor his administrators, would “ set, let, or assign over, the demised premises, or any part thereof, without permission, &c. and authorized the lessor to re-enter for any breach of covc?:an [280] The administrator of the lessee made an under lease of the premises, for less than the original term, without license ; and the court sustained an ejectment for the forfeiture, on the ground that by the literal and necessary construction of the covenant, the lessee was restrained, not only from assigning, but also from sub-letlmg : the words “ sef and “ ZeZ” being synonymous with the word demise. In the case now before us, the covenant is, that the lessee for lives would not “jell and dispose of, or assign his estate in the demised premisesand he executed a lease of part of' the premises for the term of 20 years. Applying the principles of the adjudged cases, it is clear, that Drom did not, in this case, violate his covenant, by giving the lease for 20 years: Nothing short of an assignment of his whole estate in the land could work a forfeiture. Drom conveyed only a lesser estate for term of years, out of his larger estate for life; which was plainly a mere sub-letting, and not a “ selling and, disposing of, or assigning his estate in the premises. ” The words “ sell and dispose off as clearly refer to the “ estate,” as the word “ assign.” It is a covenant by Drom not to “ sell and dispose of” his estate, nor to “ assign” his estate; and he has done • neither, by giving the lease for a term of years. In regard to the sale under the judgment and fieri facias, it is well settled that such a sale does not work a forfeiture; unless it appear that the proceedings were voluntary and collusive on the part of the tenant, with a view to defraud his landlord of his rights. (Doe, ex dem. Mitchinson, v. Carter, 8 Term Rep. 57. Jackson v. Corliss, 7 Johns. Rep. 531.) There is no evidence of any such fraud in this case. The transfer of Millers bid at the sheriffs sale, and the arrangement between the defendant and the administrators of Drom, was perfectly reconcilable with good faith, and worked no prejudice to the rights of the landlord.' The plaintiff is, therefore, entitled to recover no moro than the 18 acres, 2 roods, and 24 perches, to which his title was admitted at the trial; that part of the defendant’s possession not being covered by the lease to Drom. Judgment for the plaintiff accordingly. END OF MAY TERM. [281] CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW-YORK. IN AUGUST TERM, 1818, IN THE FORTY-THIRD YEAR OF OUR INDEPENDENCE.