§ 582. Courts favor Construction against Breach of Conditions. When the stipulation in the lease is clearly a condition and is to be so treated by the court, and the further question arises as to whether or not it has been broken so that a forfeiture may be enforced, the strong tendency of the judges is to hold, when fairly possible, that there has been no breach.1 Two emphatic principles in the present law of landlord and tenant may be here explained to illustrate this important general rule of construction. One of these is the so-called "learning in Dumpor's Case," and the other is the reluctance of the courts to treat a transfer of a leasehold as a violation of a condition against assignment or subletting.

Dumpor's Case 2 was a famous old landmark of English jurisprudence, said to have been first made definite and fixed by the decision of Brummel v. McPherson, whereby it was declared that, if intentionally and with full knowledge of the facts a landlord expressly authorize the tenant to break a condition once, he thereby waives and destroys the condition absolutely and defeats all rights of re-entry for any subsequent breach.4 The condition, in other words, is an entire thing, which can not be broken in part, and have the other part remain intact. Like any brittle object, its partial breaking is its total destruction. This peculiar rule of law was done away with in England by the statute 22 & 23 Vict. Ch. 35, §§ 1, 2, 3, which declares that a landlord's consent to have a condition of a lease once broken shall apply only to that breach, and shall leave the condition otherwise unaffected. And in this country Dumpor's Case has been generally repudiated, or at best treated as a case of very doubtful authority.5 But in the state of New York, and possibly

1 Last three preceding notes; Bates v. Donaldson (1896), 2 Q. B. 241; Rea v. Eagle Transfer Co., 201 Pa. St. 273; Patterson v. Northern Trust Co., 231 Ill. 22; § 718, infra. A condition authorizing an avoidance of a lease on default of the lessee is for the benefit of the lessor only, and if the former break it, he of course can not elect to have the lease terminated. English v. Yates, 205 Pa. St. 106; Brown v. Cairns, 63 Kan. 584. 24 Co. Rep. 119 b, 1 Smith, Lead. Cas. 47.

3 14 Ves. 173. The condition in Dumpor's Case was against an assignment of the lease, "without the special license of the lessors."

Doe v. Smith, 5 Taunt. 795; Ireland v. Nichols, 46 N. Y. 413; Cartwright v. Gardner, 5 Cush. (Mass.) 273; Smith v. Edgewood Casino Club, 19 R. I. 628; Dougherty v. Matthews, 35 Mo. 520.

5 It has even been said as to Dumpor's Case that "the idea on which it was actually founded has been entirely controverted by modern decisions." Article by Joseph Willard, 7 Amer. Law Rev. 616-640; 1 Smith, Lead. Cas. (9th ed.) 135 et seq.; Granite Building Ass'n ". Greene, 25 R. I. 48; Kew v. Trainor, 150 Ill. 150; Jones v. Durrer, 96 Cal. 95; 12 Harvard Law Rev. 273; 1 Wash. R. P. (6th ed.) § 649, note.

in some other jurisdictions, the "learning in Dumpor's Case" has not only been commended as a salutary rule; but its principle has been apparently extended, in that it has not only been said that the landlord's express permission to have a condition broken will entirely destroy it, but it has also been held that his implied assent to a breach, by accepting rent or otherwise knowingly continuing the tenancy thereafter, has done away entirely with the condition and nullified the possibility of forfeiture for any further violation.2

An assignment or sub-lease may be made by any tenant who is not expressly restrained from doing so by his contract with the landlord. To prevent this from being done, stringent conditions are sometimes inserted in leases; and, in order that a forfeiture may thus be brought about, the courts usually insist that the violation of the condition shall be very clear and emphatic. The extent to which such insistence is carried is well illustrated by the court's opinion in the leading New York case of Riggs v. Pursell. The tenant in that case, whose lease forbade assignment on pain of forfeiture, mortgaged his interest in good faith. The mortgage when due was foreclosed, and the purchaser at the foreclosure sale took possession in the place of the original lessee. Although the point was not strictly decided, yet it was declared in a dictum that has since been practically recognized as law, that, although the landlord had a new tenant, the lease had not been assigned and the condition. was not broken.6 It will be further shown hereafter how care

1 Smith v. Rector, etc. St. P. Ch., 107 N. Y. 619.

2 Murray v. Harway, 56 N. Y. 337; Clark v. Greenfield, 13 N. Y. Misc. 124, 126; Conger v. Duryee, 90 N. Y. 594; Koehler & Co. v. Brady, 78 Hun (N. Y.), 443. And see Pennock v. Lyons, 118 Mass. 92; Porter v. Merrill, 124 Mass. 534; Wertheimer v. Hosmer, 83 Mich. 56; Dougherty v. Matthews, 55 Mo. 520; 1 Taylor, Landl. & T. § 286; 1 Smith, Lead. Cas. (9th ed.) 138; §720, infra.

3 Greenaway v. Adams, 12 Ves. 395; 1 Taylor, Landl. & T. §§ 108, 402.

4 Roosevelt v. Hopkins, 33 N. Y. 81; 1 Taylor, Landl. & T. § 402.

5 66 N. Y. 193.

See also Smith v. Gromow (1891), 2 Q. B. 394; Serjeant v. Nash (1903),

2 K. B. 304; Tallman v. Bresler, 65 Barb. 369, 379, aff'd 56 N. Y. 635; Livingston v. Stickles, 7 Hill (N. Y.), 253; Kenny v. Seu Si Lun, 101 Minn. 253. According to such authorities a stipulation against assignment is not broken by the lessee's "mortgaging in good faith his leasehold interest, for a mortgage is a mere security and not a transfer of the legal title or the possession; nor is it broken by the sale under a decree on foreclosure of such a mortgage; for such a sale is made in invitum; nor by a sale of the leasehold interest on execution under a judgment entered under a warrant of attorney to confess judgment, all the proceedings being in good faith; nor by a delivery of the lease as a security for money loaned; nor by a deposit of it as security for

under modern statutes, when a forfeiture for non-payment of rent has resulted from some misfortune, oversight, or inadvertence of the tenant, he will be relieved (usually in equity) from the forfeiture, and his estate restored, upon his paying in full the amount of rent return and all interest and costs.1

-

Sum

§ 584. Entry for Breach of Condition Ejectment mary Proceedings. The normal remedy of the landlord for the tenant's breach of a condition is, of course, an entry upon the premises and the putting off of the tenant.2 Since the statutes uniformly forbid entry by force, this redress frequently calls for a lawsuit; and the ordinary action for the purpose is ejectment.3 Under some modern codes, for example those of Maine, Vermont, Michigan, and California, summary proceedings, for the quick recovery (in a few days) of the property generally in such cases, are provided for. Such proceedings are explained hereafter. But in New York, New Jersey, and probably in most of the United States, while this expeditious remedy is made available to the landlord after the “expiration of the term, either at the time definitely fixed by the lease or because of its ending as an estate on limitation, yet he can not thus dispossess the tenant, and so cause a termination of the lease, for breach of a condition other than for the non-payment of rent. 6

§ 585. Effect of Entry for Breach of Condition. The outcome of the landlord's entry, and reassumption of the property because of breach of condition, is most commonly the termination of the lease. But this does not necessarily follow; for it frequently is the result of the contract express or implied between the parties that a forfeiture of the property may be enforced, and yet the tenant's obligation to pay rent during the residue of the period of the lease may remain unchanged.7

! Howard v. Fanshawe (1895), 2 Ch. 581; Lilly . Fifty Associates, 101 Mass. 432; Henderson v. Carbondale C. & C. Co., 140 U. S. 25; St. Louis V. & D. H. R. Co. v. Terre Haute & 1. R. Co., 145 U. S. 393; Story, Eq. Jur. §§ 1315, 1316; 2 Taylor, Landl. & T. §§ 495, 496.

1 Taylor, Landl. & T. § 288; § 719, infra.

32 Taylor, Landl. & T. §§ 700-702; § 719, infra.

2 Taylor, Landl. & T. (9th ed.) pp. 362, 363, note.

5 § 636, infra.

6 N. Y. Cir. Pro. §§ 2231-2233; 2 Taylor, Landl. & T. (9th ed.) pp. 337, 361-365; Beach v. Nixon, 9 N. Y. 35; Kramer v. Amberg, 15 Daly, 205, aff'd 115 N. Y. 655; Morton v. Weir, 70 N. Y. 247; Miller v. Levy, 44 N. Y. 489; 3 McAdam, Landl. & T. pp. 16, 157, 158; Chaplin, Landl. & T. § 606.

7 Hall v. Gould, 13 N. Y. 127; Stuyvesant v. Davis, 9 Paige (N. Y.), 427 ; Grommes v. St. Paul Trust Co., 147 Ill. 634; Chaplin, Landl. & T. § 208.

sion.

§ 586. Conditions running with the Land With the ReverAt common law conditions in leases uniformly ran with the land, i. e., were binding upon, and could be enforced against, not only the tenant himself, but also his assignees and successors in interest. But the common law did not permit either conditions or covenants, except such as were implied by law, to run with the reversion; and, therefore, if the landlord assigned his interest, the assignee could not enter for a breach of the condition. This somewhat anomalous distinction was done. away with in England by the statute 32 Hen. VIII. ch. 24; and that enactment has been expressly reproduced or tacitly followed generally in the states of this country.2 (a) The net result is that conditions, as entire things, now usually run with both the land and the reversion; but it is still true that they must so run as entire things, and that an attempt to divide them by acts of the parties, as by selling off portions of the land or the reversion, is ineffectual and will ordinarily result in the entire destruction of the conditions. In other words, a condition can not be apportioned by act of the parties. But it may be apportioned by operation of law. Thus, if A demise land to B on condition, and then sell or devise distinct portions of the reversion to C, D, and E, the condition, in the absence of a clear counteracting agreement by all who are interested, is destroyed and disappears; but if A die, and the law cast the reversion on C, D, and E as his heirs, each, any or all of them may enforce the condition.3

Covenants in Leases.

Nature

Kinds.- Covenants

§ 587. Covenants in Leases in leases, that is the stipulations for the breach of which an action at law lies for damages, or in equity for injunction or

(a) The New York statutes, that make conditions run with reversions, have substantially followed that of Henry VIII. Their provisions are quoted in the note on New York Manor Lands, p. 393, supra.

1 Co. Lit. 201 a, Butler's note (84); Avelyn v. Ward, 1 Ves. Sr. 420; Van Rensselaer v. Ball, 19 N. Y. 100; Rice v. Boston & W. R. Corp., 12 Allen (Mass.), 141; Boone v. Clark, 129 Ill. 466; 2 Crabb, R. P. § 2190.

2 N. Y. L. 1909, ch. 52, § 223; 1

Stim. Amer. Stat. L. § 1352; § 721, infra.

3 Co. Lit. 215 a; Shep. Touchst. 121; Cruger v. McLaury, 41 N. Y. 219; 1 Taylor, Landl. & T. § 296; Rule in Dumpor's Case, 4 Co. Rep. 119 b, § 582, supra.