Jackson ex dem. Lewis v. Schutz

Platt, J. delivered the opinion of the Court. It was proved that Hester, the lessee, by an endorsement on the original lease, assigned the premises to one David Wager, on the 1st day of September, 1812, without license ; and without offering pre-emption to the lessors ; and without paying one tenth of the price of such assignment. An attempt was made to prove by the subsequent receipt ef rents, that the forfeiture had been waived: but that ground [184] of defence failed ; because there was no evidence that the lessors were then conusant of the assignment. We are, therefore, compelled to decide upon the validity and effect of the covenant before recited. , It is contended on the part of the defendant, (who holds under Wager,) 1st. that this being a lease in fee, to Hester and his heirs and assigns, according to the principles of the common law, the covenant not to assign, &c. is a condition repugnant to the grant, and therefore void. 2dly. That the covenant is annulled, and the lessee had an absolute and' .unqualified right to assign, by virtue of the statute “concerning tenures,” passed 20th of February 1787; (1 vol. J. & V. 67 :) and which has twice since been incorporated among the revised statutes. The first ground of objection is, in my judgment, without foundation ; because, this is a “ fee simple conditional” at the common law; or a fee simple, subject to be defeated upon a “ condition subsequent,” by the failure or non-performance of which, an estate already vested may be defeated. (2 Bl. Com. 154. Co. Lit. 201.) If the condition had been general and absolute, “ not to aliene,V it would have been necessarily repugnant, and therefore void. But here, there is no such repugnance. It is a grant to the lessee and his heirs and assigns ; but coupled with a condition, that if he is minded to sell, he shall first offer the premises to his landlord, or obtain his license to assign : and that upon any assignment made by the lessee, he shall pay one-tenth of the price to his landlord; or that the estate shall be "defeated. A condition upon a feoffment in fee, not to aliene, is void. (Co. Lit. 223. a. 10 Co. 38. b.) But the grantee may be restrained from assigning for a particular time ; or from alienating to a particular person. ,(2 Leon. 82. 3 Leon. 182. Co. Lit. 223. a. Bac. Ab. tit. Condition, L.) So a condition that the grant shall be void, if the grantee becomes bankrupt, is a good condition. (Doe, ex dem. Mitchinson, v. Carter, 8 Term Rep. 60—64.) A condition in a grant in fee simple that the deed should be void, in case the grantee assigned to a Musselman or a Pagan, or to a [185] blacksmith or a distiller, would be a good condition) and not repugnant to the grant. , If the lessee in this case had, in good faith, offered the preemption to his landlord ; and upon a refusal to purchase by the landlord, the lessee had, without license, aliened to a stranger, on paying or tendering to the landlord one-tenth of the price, it would present a different question from that now before us. There would be a strong ground to insist, that a condition not to aliene, and a condition not to aliene without license of the grantor, would be of the same legal import, and equally repugnant to a grant in fee simple. The “ act concerning tenures,” (sec. 1.) declares, “that it shall forever hereafter be lawful for every freeholder to give, sell, or aliene the lands or tenements whereof he or she is, or at any time hereafter shall be, seized in fee simple, or any part thereof, at his or her pleasure, so always, that the purchaser shall hold the lands or tenements so given, sold, or aliened, of the chief lord, if there be any, of the same fee, by the same services and customs by which the person or persons making such gift, sale, or alienation, before held the same,” &c. In order to interpret this statute, it is necessary to examine the history of the law of tenures. According to the feudal system, which is the chief origin of English tenures, neither the tenant in capile, (who held immediately of the king,) nor the tenant paravail, (who held of the tenant in cupite,) had originally a right to aliene or devise the feud, without consent of the immediate lord of whom he held. (2 Bl. Com. 57 — 72.) By magna charla, and the statute of-Westminster, (or quia emptores, &c. 18th Ed. 1. ch. 1.) tenants paravail were authorized to aliene their whole estate, to be holder» of the same lord, as they themselves held it before. But the king’s tenants in capile were not included in the general words of those statutes, and could not aliene without license; and, if they did presume to do so, it was originally a cause of forfeiture. And, afterwards, by the statute of Edw. III. ch. 12., that severity was mitigated, so that the tenant in capile might purchase a license for one-third of the yearly value of the land, and if he sold without license, he should pay a full year’s value, as a fine for alienation. (2 Bl. Com. 72. 2 Inst. 66.) By the 12th Car. II. ch. [186] 24. tenures by knight-service (or military feuds) were converted into free and common socage ; that is, an uncertain service at the discretion of his lord, into a fixed and certain rent or service. (2 Bl. Com. 77. 79.) Free and common socage could not be of the king immediately, but of a mesne lord, and of the king as lord paramount. (Ibid. 86.) The statute of Westminster, 18 Edw. I. ch. 1. (or quia emptores, &c.) directs, “ that upon all sales or feoffments of land, the feoffee shall hold the same, not of the immediate feoffor, but of the chief lord of the fee, of whom such feoffor himself held it.” (Ibid. 91.) The object of which was to secure to the chief lord (who was tenant in capite) the benefits of escheats, wardship, and other incidents, which before fell into the hands of the mesne lords. By the statute of 12 Car. II. ch. 24.finesfor alienation were abolished. In the revised edition of the statutes of this state (by Jones and Varrick) in 1787, such parts of those old English statutes as were deemed applicable to our polity, were collected and consolidated in our “ act concerning tenures.” The object of the statute now under consideration, was not to alter the law, but to adopt, in express terms, such of the English statutes relating to tenures, as were deemed to be in force here. It was at that era, when our legislature drew the line of discrimination, and either re-enacted or repealed all the British statutes that extended to the colony of JVeai-York. The design and effect of the 1st section of the act, was to regulate “ subinfeudations,” so as to empower a feoffee or tenant paravail to aliene, which, at common law, originally he could not do, without express license, although no prohibition or, condition of that kind was expressed in the feoffment. But the legislature never intended to deprive the parties of the power, by mutual consent, of framing such conditions as were before lawful. Before the statute of quia' emptores, the .tenant could not aliene without express license, or stipulation for that purpose. The object of that statute, and of the 1st section of our “ act concerning tenures,” was to reverse the old rule, so that the right of alienation was made incident to the grant, and followed of course, wherever a fee simple estate was granted, unless the parties qualify that right by an express [187] stipulation. And provided the condition be not unlawful, nor impossible, nor repugnant,.the parties have a right to bargain as they please. The conditions stipulated in this lease are, that the lessors should have a pre-emptive right, and that, on every sale, they should receive one-tenth of the purchase money. These conditions were neilher unlawful, impossible, nor repugnant; they formed an essential part of the consideration for the grant; and we may reasonably presume, that from a regard to these covenants, the stipulated rents are lower than would otherwise have been agreed on. Therefore, as the lessee failed to comply with those conditions, the estate derived under the lease has become void, and the plaintiff is entitled to judgment.