a

of the parties. But the power of the lessor to impose such conditions, is undoubted. The foundation of the power of the lessor to restrain alienation in such cases, rests exclusively upon his ownership of the reversion. Brooke says: “If a man have lands for a term of years on condition that he shall not grant over his estate, this is good by reason of a reversion remaining in the lessor.” (Brooke's. Abridgment, Condition, 57 a.) It was conceded in a comparatively late case in the New York court of appeals, that in estates for life of years, conditions in restraint of alienation are lawful. (De Peyster v. Michael, 6 N. Y. R. 467.)

A condition in a lease not to sell or dispose of any wood or timber off and from the demised premises, without permission in writing from the landlord, was held by the supreme court of the state of New York to be a good and valid condition, and that a breach thereof would work a forfeiture of the estate. Nelson, C. J., in pronouncing the opinion of the court, remarked that a covenant not to commit waste, must be construed with reference to the state of the country at the time of the demise. But that the condition prohibiting the sale of any wood or timber operates as an express restraint upon the general right of the tenant, of cutting down timber and disposing of it, that might probably otherwise be claimed to flow from the interest acquired under the lease. (Verplank v. Wright, 23 Wend. R. 506.) Such a clause in a lease as that contained in the case in Wendell should be considered a covenant in express terms, as well as a condition. If one makes a lease for years by indenture, provided always, and it is covenanted and agreed between the parties that the lessee shall not alien, this is both a condition and a covenant. (Bacon's Abr. tit. “Condition,” letter G. Co. Litt. 203 b. Shep. Touchstone, 122.)

Mr. Adams states that in his time there was only one decided case to be found in the English authorities upon the subject of the validity of covenants in a lease, and that one he refers to, and briefly considers. The lease in that case was for twenty-one years, and the proviso, that the landlord might re-enter, if the tenant became bankrupt. This proviso was held to be valid, upon the principle that it is reasonable for a landlord to restrain his tenant from assigning; so it is equally reasonable for him to guard against such an event as bankruptcy, for the consequences of bankruptcy would be an assignment; and that such a proviso is not contrary to any express law, nor against reason or public policy, for it is

a

a proviso which cannot injure the creditors, who would not rely on the possession of the land by the occupier without a knowledge also of the interest he had therein; and to discover this they must look into the lease itself, where they would find the proviso that the tenant's interest would be forfeited in case of bankruptcy. Buller, J., in his judgment in the case, made a distinction between leases for short terms, and very long leases, with respect to provisos of this nature; because if they were to be inserted in very long leases, it would be tying up property for a considerable length of time, and be open to the objections of creating a perpetuity; but he afterward adds, that the principal ground of his decision was, because it was a stipulation not against law, nor repugnant to anything stated in the former part of the lease, but merely a stipulation against the act of the lessee himself, which it was competent for the lessor to make. (Adams on Eject. 159. Roe v. Galliers, 2 Term R. 133.) But since the decision in the case of Roe v. Galliers many cases have been decided both in England and in this country involving the validity of conditions, both in conveyances of the freehold, and in leases for a term; and as has been

2 before shown, such conditions are upheld, with certain specified exceptions, and it is quite obvious that such conditions as are annexed to estates for years, are, as a general thing, more favored than those which tend to defeat a freehold estate ; as, for instance, a grant to one of a fee, with a condition that he should not alien his estate to any one, would be void, while such a condition annexed to the estate of a lessee for years might be upheld. (1 Wash. 'on Real Prop. 414, 415. Burton's Real Prop. $ 852. And vide Smith v. Atkins, 18 Vt. R. 461. Cooper v. Cole, 38 ib. 191.)

Covenants in leases are either express or implied, but usually they are expressed, and sometimes they are protected by a condition, avoiding the estate, and working a forfeiture in case of a breach by the tenant. The breach of such condition makes the estate voidable at the election of the lessor or his assigns. The condition of forfeiture may be inserted for the non-payment of rent, or for any other default, or improper conduct of the tenant, according to the agreement of the parties. Sometimes the matter of the forfeiture of tenancies is regulated by statute, and those cases will be referred to in another chapter.

II. The next thing in order is to consider the acts or omissions which will amount to a breach of any particular covenant con

a

tained in a lease, and the proceedings at common law, and under the English statute, on the clause of re-entry for the non-payment of rent, reserving the subject of such proceedings under the statutes of the several states for a subsequent chapter.

The power usually reserved in leases to landlords to re-enter in case the rent shall remain in arrear for a certain time, is the most common proviso upon which ejectments for forfeitures are formed, and several provisions are inade both by the common law and the English statute by which ejectments brought upon such provisos are regulated

At the time when provisos for re-entry were first introduced, says Mr. Adams, it was unfortunately the practice to disfigure our legal maxims with endless subtleties and distinctions; and the preliminaries required by the common law before a landlord can bring ejectment upon a clause of re-entry for non-payment of rent, are so numerous as to render it next to impossible for any unversed in the practice of the courts, to take advantage of a proviso of this nature. (Adams on Eject. 160.) These preliminaries, as stated in a note in Saunder's Reports, are: “First, a demand of the rent

, must be made, either in person or by an agent properly authorized. Secondly, the demand must be of the precise rent due: for if he demand a penny more or less it will be ill. Thirdly, it must be made precisely upon the day when the rent is due and payable by the lease, to save the forfeiture; or where the proviso is that if the rent shall be behind and unpaid by the space of thirty or other number of days after the day of payment, it shall be lawful for the lessor to re-enter; a demand must be made on the thirtieth or other last day. Fourthly, it must be made a convenient time before sunset. Fifthly, it must be made upon the land, and at the most notorious place on it. Therefore if there be a dwelling house upon the land, the demand must be at the front or fore door, though it is not necessary to enter the house notwithstanding the door be open; but if the tenant meet the lessor either on or of the land at any time of the last day of payment, and tender the rent, it is sufficient to save the forfeiture, for the law leans against forfeitures. Sixthly, unless a place is appointed where the rept is payable, in which case the demand must be made at such place. Seventhly, a demand for the rent must be made in fact, although there should be no person on the land ready to pay it.” (1 Saund. R. 287, note 16.) For authority to sustain the first proposi

a

*

tion, a case is referred to, decided in the court of king's bench in 1806, in which it was objected at the trial that the demand of the rent had been made by a witness, who told the defendant that he had power for the purpose, but though it appeared that the witness had such a power of attorney with him at the time, yet it was not produced to the defendant, which it ought regularly to have been, especially to induce a forfeiture; for otherwise the defendant might not be assured that he had the authority he assumed to have. In respect to this objection, Lord Ellenborough, C. J., remarked : “ It was necessary that the person who demanded the rent should be clothed with a proper authority to do so, and that he should notify it to the tenant

but if the tenant was satisfied without the production of the power of attorney, it was not necessary to produce it.” (Roe v. Davis, 7 East's R. 363.) And as authority for the second and fourth propositions inclusive, reference is made to a case in Carrington & Payne, wherein it is substantially held that demand must be made of the precise rent due, by the nonpayment whereof the forfeiture will be incurred; as a quarter's rent, if the rent be made payable quarterly ; half year's rent, if payable half yearly, and so forth ; and that if there be any previous arrears of rent, and the rent demanded include such arrears, it will not be sufficient to work a forfeiture. It was also decided in the same case that the demand for the rent ought to be made at the last hour of the day, at sunset. (Doe v. Paul, 3 Carr. & Pa. R. 613.)

It has been held that in ejectment to recover premises forfeited for non-payment of rent, a difference between the amount of the rent proved due and the amount demanded in lessor of plaintiff's particulars, is not material. (Tenny v. Moody, 3 Bing. R. 3. Same Case, 11 Eng. C. L. R. 12.) But it was decided by the supreme court of the state of New York, that in order that the landlord may maintain ejectment at common law for the non-payment of rent, he must comply with all the common law requirements ; such as

; the demand of the precise amount of rent on the day it fell due, at a convenient time before sundown. (Jackson v. Kipp, 3 Wend. R. 230.) And in a still earlier case, decided by the same court, it was held that the lessor could not re-enter on the ground of forfeiture for the non-payment of rent, without showing a demand of the rent due on the last day, from the tenant on the premises, a convenient time before sunset, or a strict compliance with the formal

.

.ities required by the common law; for the reason that the claim of the lessor is regarded stricti juris. (Jackson v. Harrison, 17 Johns. R. 66; vide Remsen v. Conklin, 18 ib. 447.) It has also been held by the courts in Pennsylvania, that before the grantee of a rent-charge can enter for non-payment of rent, he must demand the precise amount due, on the day it became due, on the most notorious part of the land; and this, though the premises be vacant and there be nothing to distrain. (McCormick v. Connell, 6 Serg. & Rawle's R. 151.)

It seenis that before the English statute, when the common law prevailed, it was the practice of the courts to relieve the tenant and set aside the forfeiture, even after judgment in ejectment, at any time before execution on judgment, by the payment of the debt and costs; and the tenant might apply for relief in a court of equity at any time. (Vide Downs v. Turner, Salk. R. 597; Anonymous, ib. 287; Phillips v. Doolittle, 8 Modern R. 345; Smith v. Parks, 10 ib. 383; Goodtitle v. Holdfast, 2 Strange's R. 900.) And the same practice still prevails when the ejectment is brought upon a clause of re-entry, and less than six months' rent is due, unless dispensed with by the express words of the lease, although the statute has modified the practice somewhat when above six months' rent is in arrear. (Vide Doe v. Masters, 2 Barn. & Cres. R. 490.)

By the English statute it is enacted, that in all cases between landlord and tenant, as often as one-half year's rent shall be in arrear, and the landlord has a right by law to re-enter for the nonpayment, he may, without any formal demand or re-entry, proceed by ejectment to recover the premises; and in case a declaration cannot be served, or no tenant be in actual possession, he may affix the same upon the outer door of the messuage, or if no messuage, then upon some notorious part of the demised premises, and such affixing shall be deemed legal service, and stand in the stead of a demand and re-entry; and in case of ejectment against the casual ejector, or nonsuit for not confessing, it shall be made to appear to the court by affidavit, or be proved upon the trial, in case the defendant appears, that half-a-year's rent was due before the declaration was served, and that no sufficient distress was to be found on the premises, countervailing the arrears then due, and that the lessor in ejectment had power to re-enter; that then the lessor shall recover judgment and execution, in the same manner as if