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viously accrued, could not be enforced.” The learned judge then reviews the authorities, and comes to the conclusion, that making distress after forfeiture is a waiver of the forfeiture, even under the English statute, and insists that the case of Thayer v. Eaton and the case of Goodright v. Cordwent, referred to by Mr. Adams, so far as they hold to a contrary doctrine, are opposed to the whole current of authority on the subject. And it may be added, that some of the points decided in the cases reported in 3 Douglas have been expressly overruled by the English courts.
In a late case in the supreme court of the United States, Justice Nelson, who delivered the opinion of the court, recognized the general doctrine in such cases, and, after stating that the landlord has the right to waive the forfeiture, said : “Receiving rent with the knowledge of the breach is a waiver. So, levying a distress for the rent, or in any other way consenting to a continuance of the term.” (Dermott v. Wallack, 1 Wallace's R. 61, 65.)
The acceptance of rent by the landlord, accrued before forfeiture of the lease, is not a waiver of his right to a forfeiture, nor will acceptance of rent accrued after forfeiture, unless it appear that the landlord knew of the act of forfeiture when he received the rent; acts of the lessor in ignorance of a forfeiture do not operate as a waiver of it, because there is in such case no affirmance of the tenancy, nor a recognition of the relation of landlord and tenant. (Vide Walker v. Engler, 30 Mo. R. 130.) But a covenant of a lessee to build within a certain period is not a continuing covenant, and a forfeiture for its breach is waived by acceptance of rent after the period has elapsed. (McGlynn v. Moore, 25 Cal. R. 384.)
THE ACTION OF EJECTMENT AS BETWEEN LANDLORD AND TENANT
TERMINATION OF A TENANCY BY THE NON-PERFORMANCE OF COVE-
The proceedings in cases of forfeiture of a tenancy by the nonpayment of rent, and those by the non-performance of other covenants and conditions, differ in many respects very materially; and hence the two cases are treated in separate chapters.
With respect to the construction of provisos for re-entry for the non-performance of covenants and conditions, Lord Tenterden says: “Provisos of this sort are not to be construed with the strictness of conditions at common law. These are matters of contract, and should, in my opinion, be construed as other contracts. The parties agree to a tenancy on certain terms, and there is no hardship in binding them to those terms. In my view of cases of this sort the provisos ought to be construed according to fair and obvious constructions, without favor to either side." strenuously argued in the case that all conditions to defeat an estate must be construed strictly; and such certainly is the general
7 rule; but Lord Tenterden laid down the rule in respect to covenants in a lease, as above stated. (Doe v. Elsam, 1 Moody & Malkin's R. 189.) This rule, however, does not interfere with the well-known maxim of law, that every doubtful grant shall be construed in favor of the grantee, which is as applicable to these · provisos in leases as to any other grants. The rules to be applied to these cases will be best understood by a brief reference to the authorities upon the subject.
In a case decided by Bridgman, J., cited in Shephard's Touchstone, it is said: “If one make a lease for years of a manor, and covenant that the lessee shall make estates for life or years, and that they shall be good; in this case it seems this covenant shall not be taken to enable the lessee to make estates for a longer time than his estate will bear.” (Shep. Touch. 169.) When the obligation was expressed thus : that whereas the defendant had sold to the plaintiff a lease for years of the manor of S., he would not do, nor had done any act to disturb the plaintiff's possession of it; but that the plaintiff should hold and enjoy this peaceably, without the disturbance of the defendant, or any other person ; it was held by all the justices that the defendant was not bound by the words of the condition to warrant peaceable possession to the vendor, but only against acts done by himself; and that all the sequel of the condition which comes after the but, shall be referred to the antecedent part of the condition, and expounded and extended in like manner; that is to say, that he shall enjoy it without disturbance of any person or persons by any act by him done, or to be done. (Boughton v. Conway, Moor's R. 58.) To be sure, this is not a construction put upon the covenants in a lease, and yet this case affords an illustration of many which may occur between landlord and tenant. The old maxim that “the scope and end of every matter is principally to be considered; and if the scope and end of the matter be satisfied, then is the matter itself and the intent thereof also accomplished,” is as applicable to leases as to other deeds.“The law being to judge of an act, deed or bargain, consisting of divers parts, containing the will and intent of the parties, all tending to one end, doth judge the whole, and gives every part his office to make up that intent, and doth not break the words in pieces.” (Lord Hobart, Clanrickard v. Sidney, Hobart's R. 273, 275.)
It has been held by the court of king's bench, that covenants in a building and repairing lease, to lease the demised premises with all new erections, well repaired, extends to the new erections only. (Lant v. Norris, 1 Burrows' R. 287.) This case may serve to aid in the construction of leases in other cases that may arise between landlord and tenant, and throw some light on the subject under consideration.
The doctrine is thus stated in a case in the supreme court of Pennsylvania : “ The true rule for the interpretation of covenants is so 'to expound them as to give effect to the actual intent of the parties, as collected from the whole instrument; though the result may be that words per se implying a personal obligation, will be denied the effect of a covenant or a personal promise to pay, without regard to the enjoyment of the property.” (Shoenburger v. Hay, 40 Penn. R. 132.)
In a late case decided by the supreme court of the United States, when a lease at $3,000 a year was given a construction, payable in monthly installments, and the lease stipulated that if the tenant underlet or attempted to remove any of the goods on the premises without the landlord's consent, then at the sole option and election of the landlord, the term should cease ; and moreover, in either of said cases, “one whole year's rent, to wit, the rent of $3,000 over and above all such rents” as have already accrued, shall and is hereby reserved, and shall immediately accrue and become due and owing, and shall and may be levied on by distress and sale of all such goods as may be found on the premises; it was held by the court that, although the clause in the lease was obscure, the $3,000 was “rent,” intended to be secured in advance and in a gross sum instead of in the monthly, and was not a penalty above and independent of the other and reserved rents.
Mr. Justice Nelson, who delivered the opinion of the court, said:
These covenants are inserted in a lease for the better security of the rent. The one in question simply makes the rent payable in advance, instead of by installments, on the happening of the event stated. It would have been not only strange, but unreasonable to have made this stipulation, as contended for on the part of the plaintiff, to take effect at the moment the term ceased, or might be put an end to by the landlord. The words should be very clear and controlling to lead to such an interpretation.” In this case the tenant had executed two deeds of trust of the goods and chattels mentioned in the lease, whereupon it was claimed that the $3,000 became due, although the lease had not more than a year to run, and the court sustained this view. (Dermott v. Wallack, 1 Wall. R. 61.) A lease contained the following proviso: “If the said C.” (the lessee) “shall, either by his own act or acts, or by bankruptcy, insolvèncy, writ of extent, or of execution by fieri facias, or other act of law, or by any other means whereby, either voluntarily or without or against his consent, whereunder the said premises demised, or any part thereof, would, in case this proviso did not exist, be liable to be seized by the sheriff or any other person, or in case the said C. shall at any time or times hereafter make breach or default in the performance of the covenants," etc., “then, and in any or either of the cases, this present indenture, and the term hereby created shall thenceforth cease and determine; and it shall and may be lawful to and for the said C.," the lessor, to re-enter and expel the lessee. On ejectment, bronght upon forfeiture supposed to have accrued by execution of a fieri facias issued against the lessee, the court held, that the proviso was insensible, and nonsuited the plaintiff. Lord Denman, C. J., saying: “I am of opinion that the court is not bound to find out a meaning for a proviso framed as this is,” and Williams, Coleridge, and Wightman, JJ., concurred. (Doe v. Cavin, 2 Adolph. & Ell. R. N. S. 317. Same Case, 42, Eng. C. L. R. 692.)
In a late case decided by the supreme court of the state of New York, the lease and counterpart contained provisions in regard to letting or underletting which were substantially identical. In the instrument signed by the lessee the phraseology was, the premises shall not "be let or underlet without the written consent of the landlord, under the penalty of forfeiture and damages.” In the counterpart signed by the lessee, he “engages not to let or under
let the whole or any part of said premises without the written consent of the landlord, under the penalty of forfeiture and damages." It was contended by counsel that these words did not make a condition, the breach of which would terminate the lease. The court however construed the word “forfeiture,” to mean forfeiture of the term and estate. Emott, J., who delivered the opinion of the court, after giving the construction as above, said: “There is no other sensible meaning which can be attached to it, and, while courts will construe strictly clauses which create conditions and go to defeat estates, that does not mean that we have a right to disregard the obvious intentions of parties, or the reasonable use of their words, in such an instrument as this, although they may be inartificially expressed.” (Lynde v. Hugh, 27 Barb. R. 415, 420, 421.)
The rule of law has always been, that the same precise words of condition are not required in leases for years as in conveyances of freehold estates. (2 Co. Litt. 204, a.)
In a case in England involving the construction of the covenants in a lease, in which the word "let” was coupled with “set” and "assign over," the court construed the word “set” to mean underlet, and it was declared that the whole covenant forbid an underlease, as well as an assignment. (Roe v. Harrison, 2 Term R. 425.) But in all cases of this kind, the extent and meaning of the covenant or condition, and the fact of a breach, are questions strictissimi juris, and the plaintiff, to defeat an estate of his own creation by means of such a condition, must bring the defendant clearly within its letter. (Vide Livingston v. Stickles, 8 Paige's R. 398. Same Case in error, 7 Hill's R. 253. Jackson v. Silvernail, 15 Johns. R. 278. Jackson v. Harrison, 17 ib. 66.)
In an action for specific performance, in the English court of chancery, the question was, whether the lessee of a public-house, who had contracted to sell and assign his lease, could do so without the conseift of the lessor. The lease contained a condition, that the lessee should not “let, set or demise” the premises without the consent of the lessor. It was strongly insisted on the argument at the rolls, that the word “set” included an assignment or conveyance of the whole term, and it seems that Sir William Grant, Master of the Rolls, adopted that view, and decided the case in accordance with that construction, holding that the words of the covenant could not have distinct operation and effect without reference to an assignment. (Greenway v. Adams, 12 Ves. R. 395.)