appurtenance to the leased premises. Brown v. Carkeek, 14 Wash. 443 (44 Pac. Rep. 887). For construction of particular lease of water rights, see New Sharon Water P. Co. v. Fletcher, 88 Me. 571 (34 Atl. Rep. 522). For construction of particular lease see Hull v. Sanctuary, 68 Vt. 57 (33 Atl. Rep. 899). For construction of particular leases giving option to purchase, see Duke v. Griffith, 13 Utah 361 (45 Pac. Rep. 276); Hawes v. Favor, 161 Ill. 440 (43 N. E. Rep. 1076).

Sec. 457. Construction Provision as to termination. In construing a lease for ten years which provided that it might be terminated at the expiration of five years upon the lessor giving sixty days' notice, and paying the lessee for his improvements, it was held that where the latter had assigned his interest to a stranger, who in turn assigned to another, the lessor, upon giving the notice required, was not bound to pay to the lessee the value of the aforesaid improvements as an indispensable condition precedent to his right to terminate the lease, but that, having tendered in a court of equity payment for the improvements to whomsoever should be entitled to such amount as upon an accounting should be found due, the court had jurisdiction to declare the lease to have been terminated at the end of five years of its existence, and grant full relief between the parties litigant. Estabrook v. Stevenson, 47 Neb. 206 (66 N. W. Rep. 286). Although a lease for a term of years specified that upon the lessee's failure to pay the notes given therefor, at maturity, the property should revert to the lessor, it is held that a mere failure of the lessee to pay such notes did not revest the estate in the lessor until after peaceable entry by him, or recovery of the premises in an action. Peacock & Hunt Naval Stores Co. v. Brooks Lum. Co., 96 Ga. 542 (23 S. E. Rep. 835).

Sec. 458. Covenants in leases. Covenants are construed most strongly against the covenantor. Miller v. McCardle, 19 R. I. 304 (33 Atl. Rep. 445; 30 L. R. A. 682). Covenants to pay rent or royalties run with the land. Edmonds v. Mounsey, 15 Ind. App. 399 (44 N. E. Rep. 196). Where a lessee covenants "to keep the fences in repair, the

material for which to be furnished by the lessor," the measure of damages for the lessor's failure to furnish the materials is the amount paid by the lessee for them. Wood v. Sharpless, 174 Pa. 588 (34 Atl. Rep. 319). Particular complaint in action for breach of covenant to give possession held sufficient. Loufer v. Stottlemyer, 16 Ind. App. 221 (44 N. E. Rep. 1008).

Sec. 459. Renewal of lease. The privilege of renewal, upon the giving of a certain notice, in a lease executed to several as joint lessees, cannot be exercised by one of them. Howell v. Behler, 41 W. Va. 610 (24 S. E. Rep. 646). A covenant in a lease will not be construed as providing for perpetual renewals in the absence of clear and unequivocal language to that effect. Brush v. Beecher, 110 Mich. 597 (68 N. W. Rep. 420). The court say: "Courts will, if possible, so construe the writing as to avoid a perpetuity by renewal. Muhlenbrinck v. Pooler, 40 Hun. 526; Bruce v. Bank, 79 N. Y. 154; Rutgers v. Hunter, 6 Johns. Ch. 215; Piggott v. Mason, 1 Paige 412; Carr v. Ellison, 20 Wend. 177; Syms v. Major, etc., 105 N. Y. 153 (11 N. E. Rep. 369; Id., 50 N. Y. Super. Ct. 289)."

Sec. 460. Subletting. Where a lease provides that the property cannot be sublet without the written consent of the lessor's agent, a cancellation of the lease cannot be had because of the refusal to give such consent. Hill v. Rudd, 99 Ky. 178 (35 S. W. Rep. 270). A sublessee holding under one whose lease prohibits subletting, but does not provide for a forfeiture on account of it, has the right to possession as against one claiming under a lease from the original lessor executed after the sublease, but before steps were taken by the lessor to cancel the original lease, or to retake possession. Winkler v. Gibson, 2 Kan. App. 621 (42 Pac. Rep. 937). The common law rule that the lessor has no right of action on any of the covenants of the original lease against a subtenant of his lessee has been modified by Mo. Rev. Stat., 1889, §§ 6376, 6384, 6388, 6389, only to the extent of permitting such an action in case a lien is sought upon crops or the right of attachment exists. St. Joseph & St. L. R. Co. v. St. Louis, I. M. & S.

理

Ry. Co., 135 Mo. 173 (36 S. W. Rep. 602). See opinion for an extensive discussion and citation of authorities upon the distinction between the assignment of a lease and a sublease.

Sec. 461.

Assignment of leases. covenant" not to assign the lease, or to

Where two lessees permit any assign

ment thereof to be made," a forfeiture cannot be enforced on account of an assignment of his undivided half interest by one of said lessees. Randol v. Scott, 110 Cal. 590 (42 Pac. Rep. 976). An assignment of a lease is governed by the same rules as a sale of personal property, and the failure of the assignor's title is a good defense to an action to recover the purchase money from the assignee. In such case the assignee may yield possession to the true owner on his demand, without waiting for him to take it forcibly or by lawful proceeding. Feffers v. Easton, Eldridge & Co., 113 Cal. 345 (45 Pac. Rep. 680). In the absence of some agreement to the contrary, the lessor who assigns his lease for the whole term remains liable as surety for his assignee's performance of the covenants of the lease. Dietz v. Kucks, Cal. (45 Pac. Rep. 832). Citing, Armstrong v. Wheeler, 9 Cow. 88; Babcock v. Scoville, 56 Ill. 461; Salisburg v. Shirley, 66 Cal. 223 (5 Pac. Rep. 104); Greenleaf v. Allen, 127 Mass. 248; Wilson v. Gerhardt, 9 Colo. 585 (13 Pac. Rep. 705). Acquiescence in the assignment of a lease and the acceptance of rent from the assignee does not release the original lessee from his liability. Lovejoy v. McCarty, 94 Wis. 341 (68 N. W. Rep. 1003). Whenever a lessee transfers and assigns the whole term for which he has leased premises, reserving no reversionary interest whatsoever to himself, the right of re-entry for a breach of a condition subsequent is not reserved or retained, for the reason that the right of re-entry cannot exist as an independent condition but only as an incident to an estate or interest for the protection of which it is reserved. Ohio Iron Co. v. Auburn Iron Co., 64 Minn. 404 (67 N. W. Rep. 221). A voluntary assignment made by a lessee for the benefit of his creditors is a violation of a provision in his lease that he shall not assign this lease, or let or underlet said premises, or any part thereof, without the written consent

of the lessor," for which the lessor may declare a forfeiture; and his right to so declare a forfeiture is not waived by his accepting rent from the assignee for the use of the premises before he had made any election to refuse or accept the lease. Medinah Temple Co. v. Currey, 162 Ill. 441 (44 N. E. Rep. 839; 53 Am. St. Rep. 320). An implied covenant to pay rent cannot be discharged by the mere assignment of the lease without the lessor's consent. Consumers' Ice Co. v. Bixler, 84 Md. 437 (35 Atl. Rep. 1086). For an extensive discussion and citation of authorities upon the distinction between the assignment of a lease and a sublease, see St. Joseph & St. L. R. Co. v. St. Louis, I. M. & S. Ry. Co., 135 Mo. 173 (36 S. W. Rep. 602).

Sec. 462. Assignment of lease-Liability of assignee. "An actual entry upon the demised premises by an assignee of the lessee is not required, in order to charge him with the performance of covenants running with the land; for by accepting an interest under the conveyance he incurs all the responsibility connected with the estate, as if he had taken possession in fact." Edmonds v. Mounsey, 15 Ind. App. 399 (44 N. E. Rep. 196). Citing, Walton v. Cronly's Adm'r, 14 Wend. 63; Walker v. Reeves, 2 Doug. 461, note; Williams v. Bosanquet, 1 Brod. & B. 238, overruling Eaton v. Jaques, 2 Doug. 455; Burton v. Barclay, 7 Bing. 745; Cook v. Harris, 1 Ld. Raym. 367; Babcock v. Scoville, 56 Ill. 461; Board, etc., of St. Louis Public Schools v. Boatman's Ins. & Trust Co., 5 Mo. App. 91; Smith v. Brinker, 17 Mo. 148 (57 Am. Dec. 265); Willi v. Dryden, 52 Mo. 319; University of Vermont v. Joslyn, 21 Vt. 52; 1 Wood, Landl. & Ten. § 332; 2 Platt, Leases, 422; 1 Woodf. Landl. & Ten. 260; Damainville v. Mann, 32 N. Y. 197 (88 Am. Dec. 324). An assignee of a mineral lease takes subject to the right of the lessor to enforce a forfeiture for nonpayment of the royalties and with notice of the state of the payments. Comegys v. Russell, 175 Pa. 166 (34 Atl. Rep. 657). An assignee of an oil and gas lease is bound by an acceptance thereof to perform its covenants to pay rent and royalties. Breckenridge v. Parrott, 15 Ind. App. 411 (44 N. E. Rep. 66); Edmonds v. Mounsey, 15 Ind. App. 399 (44

N. E. Rep. 196). In the last case it is held that actual entry upon the demised premises by the assignee is not required in order to create this liability. Citing, Fennell v. Guffey, 139 Pa. St. 341 (20 Atl. Rep. 1048); Fennell v. Guffey, 165 Pa. St. 38 (25 Atl. Rep. 785); Springer v. Gas Co., 145 Pa. St. 430 (22 Atl. Rep. 986); Aderhold v. Supply Co., 158 Pa. St. 401 (28 Atl. Rep. 22).

Sec. 463. Destruction of property which lessee has an option to purchase-Right to insurance. Where leased property insured in the name of the lessor, which the lessee has an option to purchase, is destroyed by fire, the lessor receiving the insurance money and applying only a portion of it to the restoration of the premises, the lessee, upon exercising his option to purchase, is entitled to have the balance of the insurance money credited on the purchase price. Williams v. Lilley, 67 Conn. 50 (34 Atl. Rep. 765; 37 L. R. A. 150).

Sec. 46. Miscellaneous notes. A leasehold estate is personal property. Jeffers v. Easton, Eldridge & Co., 113 Cal. 345 (45 Pac. Rep. 680). Equity will not reform a lease in order that a forfeiture may be enforced thereunder. Morris v. Kettle, N. J. Eq. (34 Atl. Rep. 376). One who takes a lease of premises upon which an attachment has been levied holds subject to the result of the attachment proceedings. King v. Wilson, 54 N. J. Eq. 247 (34 Atl. Rep. 394). For consideration of particular instrument executed by remaindermen to a life tenant empowering her to lease the property, see Taussing v. Reel, 134 Mo. 530 (34 S. W. Rep. 1104). A lessee and his sublessee are liable to a lessor for damages to a building by fire resulting from their use of the same in violation of the lease. Anderson v. Miller, 96 Tenn. 35 (33 S. W. Rep. 615; 54 Am. St. Rep. 812; 31 L. R. A. 604). Where a lease does not purport to bind the heirs of the parties, it terminates upon their death. Brush v. Beecher, 110 Mich. 597 (68 N. W. Rep. 420). A corporation taking possession and paying rent under a lease executed by its officers without authority thereby ratifies it. Fenet v. Albers, Colo. App. A statute (Wash. Laws 1891, p.

(43 Pac. Rep. 452).