NOT, during the said term, fell, stub, cut, destroy or spoil, or wilfully damage any timber trees, pollards, wood, or Greenaway v. Adams, 12 Ves. 395). But both assignment and underletting are restrained by a condition "not to set, let, or assign;" (Roe d. Gregson v. Harrison, 2 T. R. 425); or by a condition "not to assign, or otherwise part with the premises, for the whole or any part of the term ;" (Doe d. Holland v. Worsley, 1 Camp. 20); or by a covenant "not to let, set, or demise the premises for all or any part of the term." (Greenaway v. Adams, 12 Ves. 395). A restriction against underletting a house does not prevent the lessee from letting a room to a lodger for his exclusive use. (Doe d. Pitt v. Laming, 4 Camp. 77). But where the condition was not to "demise, lease, grant, or let the premises, or any part or parcel thereof," and not to assign the indenture of lease, or the lessee's interest therein, or any part thereof; and the lessee agreed with another person to enter into partnership with him, and that he should have the use of certain parts of the premises exclusively, and of the rest jointly with the lessee, and let him into possession, it was held, that the covenant was broken. (Roe d. Dingley v. Sales, 1 Mau. & Sel. 297). A condition restraining underletting is not broken by advertising the farm to be let; (Gourlay v. The Duke of Somerset, 1 Ves. & Bea. 68); and as to what is evidence of an underletting, see Doe d. Hindly v. Rickarby, 5 Esp. 4; Doe v. Payne, 1 Stark. 86. Where, in a lease for three lives, there was a proviso for re-entry if the lessee or his executors should lease for more than seven years without license; and the third life being in possession, as executor under his father's will, leased for fourteen years without license, it was held, that there was no forfeiture; for as the lease could not extend beyond the life of the lessor, it might not endure for seven years. (Northcote v. Duke, 1 Eden, 319). OF A FARM. and by what acts the re striction is broken. General restriction does not include an assignment by law. A general restriction on assignment does not apply to an assignment by operation of law, as a sale by a sheriff under an execution. (Doe d. Mitchinson v. Carter, 8 T. R. 57). And it is of no moment that a warrant of attorney has been given to confess the judgment operation of on which the execution has been sued out, unless, as happened in that case, the warrant of attorney was given in fraud of the covenant, and for the purpose of effectuating the sale. (S. C. 8 T. R. 300). So a lease passes to the assignees in bankruptcy, although it contain a general restriction on assignment; (Goring v. Warner, 2 Eq. Ca. Abr. 100; S. C. 7 Vin. Abr. 85; Philpot v. Hoare, Amb. 480); and the restriction does not operate to prevent the assignees from selling, although the restriction expressly includes "assigns." (Doe d. Goodbehere v. Bevan, 3 Mau. & Sel. 353). Whether the assign of the assignees is bound by the covenant, does not appear to have been decided; but in a case in which the restriction was OF A FARM. underwood, or any new quick fences, growing on the premises, under the penalty of paying to the said A. B. or Lease may be made determinable on bankruptcy or insolvency. When exe cutors, admin istrators, and assigns of the lessee are restrained from assigning. against assignment and underletting, but did not include "assigns It is clear, that a lease may be made void or voidable upon bankruptcy, (Roe d. Hunter v. Galliers, 2 T. R. 133; Hickinbotham v. Groves, 2 Car. & Pay. 492), or upon the lessee's becoming insolvent, or upon a judgment being entered up against him, or a fieri facias or execution being sued out against him, (Davis v. Eyton, 7 Bing. 154). Provisions of this nature will be found in the proviso for re-entry, infra; for they are not matters for covenants, and it would perhaps be better if this covenant were omitted, and the condition as to assignment and underletting introduced expressly into the proviso for re-entry, instead of being included in that power among the other covenants, on the breach of which the proviso is to take effect. If the condition be that the lessee, his executors or administrators, shall not assign, it is of course broken by an assignment by an executor or administrator. (More's case, Cro, Eliz. 26; Roe d. Gregson v. Harrison, 2 T. R. 425; Lloyd v. Crispe, 5 Taunt. 249; Mason v. Corder, 7 Taunt. 9; 2 Marsh. 232). But if the condition apply only to the lessee personally, the executor or administrator may assign. (Seers v. Hind, 1 Ves. Jun. 295). It is however proper, as a general rule, to name the executors and administrators in the condition, and also to include the "assigns;" for although it was formerly held, that if a lease were made to a man and his assigns, alienation could not be restrained, (Hob. 170), yet the contrary is now clear. (Co. his assigns £50 a load for every load of timber or wood, and £10 a tree for every young tree which shall be felled, Litt. 204. a., 223. b.), and the word "assigns" is not repugnant to the condition, because the lessee may have assigns by license, and (if there be no provision determining the lease on bankruptcy or execution) assigns in law. (Weatherall v. Geering, 12 Ves. 504, 511; see too Paul v. Nurse, 8 B. & C. 486; S. C. 2 Man. & Ry. 525, where Bayley, J., observed, that it might admit of some doubt, whether an assign was within a covenant, that the lessee, his executors or administrators, would not assign). If an assignment were made without license, and the lessor waived the forfeiture, the condition restraining "assigns" might apply. And in the case, too, in which there is a restriction on assignment, except to particular persons, the restriction should certainly extend to the assigns, so as to prevent any further assignment. For in Whichcot v. Fox, (Cro, Jac. 398), the condition being, that the lessee should not assign except to certain persons, it was held, that this was no restriction on one of those licensed assigns. But where the condition was, that neither the lessee, nor his executors or assigns, should assign except to particular persons, it was held, that one of these licensed assigns could not assign to another person. (Anon. Dy. 152 a; Thornhill v. King, Cro. Eliz. 757; see too Lloyd v. Crispe, 5 Taunt. 249). In Berry v. Taunton, (Cro. Eliz. 331), and Dumper v. Syms, (Id, 815), it was held, that a bequest of the lease was a breach of the condition not to assign, although the same principle certainly would not now be applied to the decision of the case of Berry v. Taunton, for there the condition was not to demise. And in Fox v. Swann, (Sty. 483), it was held, that a condition restraining assignment was not broken by a bequest. In the absence of a bequest, of course the term vests in the executor as assets, but it seems, that an express bequest to him even as executor, would be a breach of the condition. (Cro. Eliz. 816; Barton v. Horton, 1 Roll. Abr. 428, pl. 1). It is presumed, that a term which would be forfeited by a bequest would be held not to pass under a general bequest. It will be sufficient in this place to advert but briefly to a doctrine connected with the subject, but which will be more fully discussed in another place. (See post, Vol. 5, Art. Defeasance). It is this, that a condition dispensed with in part, is dispensed with altogether; and therefore, where there is a lease with a proviso for re-entry on assignment without license of the lessor, or with a covenant not to assign without a license of the lessor, and a proviso for re-entry on a breach of covenant, and an assignment is once made with license, the condition is altogether determined. (Dumper's case, 4 Co. Rep. 119; S. C. nom. Dumper v. Syms, Cro. Eliz. 815; Crusoe d. Blencowe v. Bugby, 3 Wils, 234; Lloyd v. Crispe, 5 Taunt. 249). So, too, an OF A FARM. Whether a bequest is a condition not to assign. breach of a A license for one assignment dispenses with altogether. the condition OF A FARM. As to the kind of license required, and waiver of the forfeiture. Construction of cut, stubbed, destroyed or spoiled, or wilfully damaged as aforesaid, and so in proportion for any greater or less assignment with license of part of the land, determines the condition as to the residue, (4 Co. Rep. 120); or if the lease be to three persons, with a condition that they or any of them shall not alien without license, and one of them alien with license, the condition as to the other two is gone. (Crompton v. Leeds, 1 Roll. Abr. 472; S. C. cited nom. Lylds v. Crompton, Cro. Eliz. 816). The rule is the same in equity as at law. (Brummell v. Macpherson, 14 Ves. 175; Macher v. The Foundling Hospital, 1 Ves. & Bea. 188, 191). But the principle only applies to the condition; if the restriction be by covenant extending to the assigns, the landlord's right of action on the covenant would remain after an assignment with license. If the license to assign be required to be by writing, a parol license is of course insufficient; (Roe d. Gregson v. Harrison, 2 T. R. 425); but a court of equity would relieve, if such parol license were given with the fraudulent intention of inducing the lessee to commit a forfeiture. (Richardson v. Evans, 3 Madd. 218). But acceptance of rent by the lessor, after having knowledge of the breach of the condition, is a waiver of the forfeiture then incurred. (Whichcot v. Fox, Cro. Jac. 398; Goodright d. Walters v. Davids, Cowp. 803; Doe d. Boscawen v. Bliss, 4 Taunt. 735; see however Marsh v. Curteys, Cro. Eliz. 528). But of course, acceptance of rent after a breach of the condition does not bar the lessor's right of re-entry, unless he was aware of the breach at the time of such acceptance. (Harvey v. Oswald, Cro. Eliz. 553; S. C. nom. Harvey v. Oswel, Id. 553; Roe d. Gregson v. Harrison, ubi supra). Nor does a waiver of the forfeiture occasioned by a breach of a condition not to underlet, preclude the landlord from entering for another breach by a subsequent underletting. (Doe d. Boscawen v. Bliss, 4 Taunt. 735). After the lessor has given a license, its efficacy is not impaired by his death, (Co. Litt. 52. b.), or by his parting with the reversion before the assignment be made. (Walker v. Ballamie, Cro. Jac. 102). The power of assignment is not restrained by the mere omission in the lease of the word "assigns," (15 Ves. 264), but a condition of re-entry or forfeiture is created by any words, however informal, which indicate that such was the intention of the parties. (Simpson v. Titterell, Cro. Eliz. 242; Whichcot v. Fox, Cro. Jac. 398; see too Thomas v. Ward, Cro. Eliz. 202; Archdeacon v. Jennor, Cro. Eliz. 604; Doe d. Henniker v. Watt, 8 B. & C. 308; S. C. 1 Man, & Ry. 694). Conditions, however, of this nature are construed with great strictness; for where a lease contained several covenants on the OF A FARM. and will not land, nor use plough pasture the lands connant; trary to cove quantity of timber or wood, or greater number than one tree, (except such rough wood, bushes and thorns, for repairing the said messuage and buildings, gates, posts, pales, rails, stiles, hedges, and fences of the said demised premises, as may be first set out and allowed as aforesaid), and shall not, at any time during the continuance of the said term, lay any corn or other weighty or prejudicial thing in the said house, so as to damage any part thereof; AND SHALL NOT, during the said term, plough up or convert into tillage any part of the said meadow or pasture land, or plough, sow, use, or manage any of the said arable lands, or dig or break up for brick earth, or any other purpose whatsoever, any part of the demised premises, contrary to the covenants herein contained, without being subject to the further yearly rent or yearly rents hereinbefore reserved (i); AND SHALL NOT mow any of the natural grass, or meadow or pasture lands, for two years successively, nor more than one-third of the said pasture lands, and an equal moiety of the artificial grasses in the eighth year of the said term; AND THAT it shall be lawful for the said A. B. and his assigns to lay and stack upon the said premises all such hay, wood, and coals, as he or they shall think proper, after the the eighth year of the said term, without injury to the end of the tenant, and to fence in the same during the remainder of the said term: AND THAT the several and respective additional or increased rents, hereinbefore reserved, shall be recovered on their becoming due as aforesaid, in the same manner as the hereinbefore reserved rent of £ recovered, and no receipt for rent shall be a discharge for day of in may be part of the lessee, including a covenant not to assign without license, followed by a proviso for re-entry, on breach "of all or any of the covenants hereinafter contained on the part of the lessee;" and there were no subsequent covenants on the part of the lessee, the court decided, that "hereinafter " could not be held to mean "hereinbefore,” although the meaning was evident. (Doe d. Spencer v. Godwin, 4 Mau. & Sel. 265). (i) The utility and propriety of this covenant are doubtful. (See supra, p. 49, n. (d). and will not mow more than a specified quantity of grass; and that lessor may stack hay, &c., on the premises for a certain time before the term; and that the increased rents shall be subject to certain con ditions; |