In all cases where an estate for years is granted on condition. and the lease declares that the estate shall cease and determine on the breach of the condition, without any clause of re-entry or other qualification, the estate will ipso facto cease, as soon as the condition is broken. But if the lease provides expressly that the landlord shall re-enter in case of a breach of the condition, then the lease is not void, but voidable only at the election of the landlord. (Vide Pennant's Case, 3 Coke's R. 64. Stuyvesant v. Davis, 9 Paige's R. 431. Arnsby v. Woodward, 6 Barn. & Cres. R. 519. Parmelee v. The Oswego and Syracuse Railroad Company, 6 N. Y. R. 74.)

A lease contained the following clause: "And also shall be lawful for E. D." (the lessor), "her executors," etc., "to call on tenant for quarterly payment of rent, or, if otherwise, as now accepted, at Michaelmas and Lady-day, as a matter of favor, with a quarter remaining in hand, and if not paid in twenty days after, rent as stated, and 107. of included rent for breaking up land by acre, then the tenant shall be liable to have the rent, etc., due, recovered by sale and distress, or to enter on the premises for the same till it be fully satisfied." On ejectment brought to recover the premises for alleged forfeiture, the court held (1) that the clause might be understood as reserving a right of entry, upon non-payment of rent, to hold the premises till the arrears are paid; and (2) that, under this clause, the lessor could not enter without the commonlaw formalities, section 2 of statute 4 George II, chapter 28, applying only where there is a right of re-entry by which the lease is avoided. Lord Denman, C. J., in delivering the opinion of the court, said: "The lease was very inartificially drawn; but, giving it a reasonable construction, it contained a condition that, upon non-payment of the reserved rent, the lessor might enter and hold the premises until the arrears were paid. The precise words are, 'to enter on the premises for the same till it be fully satisfied.' Such a condition would have enabled the lessor to maintain ejectment at common law, fulfilling the requisite formalities; and he would have been entitled to hold the premises until the arrears were satisfied; but, when they were satisfied, the lessee might re-enter, and hold the premises under the lease as before. The effect of such a condition in a lease as that in question is stated in Coke on Littleton, 213, a." (Dow v. Bowditch, 8 Adolph. & Ell R. N. S. 973. Same Case, 55 Eng. C. L. R. 971.)

In a lease containing a proviso for re-entry on breach of any of the covenants, the lessee covenanted that he, his executors or assigns, would insure the demised premises, and keep them insured during the term, and deposit the policy with the lessor; the court held, that the true construction of this covenant was not that the lessee should effect one policy, and keep that policy on foot, but that he, his executors, administrators or assigns, should always keep the premises insured by some policy or another, and that it was a breach if they were uninsured at any one time, and a continuing breach for any portion of the time they were uninsured. (Doe v. Peck, 1 Barn. & Adolph. R. 428. Same Case, 20 Eng. C. L. R. 417.)

A stipulation in a lease, that, on notice, the lessee will surrender, and the lessor may enter on such parts of the premises as he may desire, is held to allow the lessor to take the whole; that such a stipulation operates as a condition, and, on the requisite notice being given, puts an end to the term. (Gardiner v. Kennard, 12 Queen's B. R. 244. Same Case, 64 Eng. C. L. R. 243.)

A covenant in a lease binding the lessee to take down houses within a certain term, and erect new ones, it is held, may be complied with by completely and substantially repairing, without taking down. (Evelyn v. Raddish, 7 Taunt. R. 411. Same Case, 2 Eng. C. L. R. 423.) But under a covenant that the tenant "would substantially repair, uphold and maintain" a house, the court held, that the tenant was bound to keep up the inside painting. (Monk v. Noyes, 1 Carr. & Pa. R. 265. Same Case, 12 Eng. C. L. R. 159.) And it has been held, that a covenant to keep and leave the house demised in repair is not satisfied by keeping the building in substantial repair according to the nature of the tenement. (Stanley v. Towgood, 3 Brooke's New Cases, 4. Same Case, 32 Eng. C. L. R. 13.) So, also, it has been held by the court of appeals of the state of New York, that in the leasing of premises for a first-class hotel, a covenant to keep the same in repair, is broken by permitting the flues to remain in such condition that the rooms cannot be used with a fire, owing to the issuing of smoke from the grate into the room, whenever a fire is lighted therein. (Myers v. Burns, 35 N. Y. R. 269.)

II. It is not always an easy matter to determine what is a breach of the covenant of a lease so as to justify an ejectment by the lessor. The question will be best comprehended by a reference to the leading cases upon the subject.

It has been held that a power of re-entry, if the tenant make default in performance of any of the clauses in the lease by the space of thirty days after notice, does not apply to a breach of a covenant not to allow alterations in the premises, or permit new buildings to be erected thereon without the permission of the landlord. (Polk v. Marchitti, 1 Barn. & Ad. R. 715. Same Case, 20 Eng. C. L. R. 662.) And it seems to be a question of doubt, if the attainder of the tenant upon conviction of felony is a forfeiture of the lease, under a proviso tnat if the lessee, his heirs, etc., should, during the continuance of the term, happen to become insolvent, and unable in circumstances to go on with the management of the premises, the demise should cease, and be void. But it was held, that if it was a breach of the condition, it was not a continuing breach, but was contemporaneous with the conviction. (Griffith v. Pritchard, 5 Barn. & Ad. R. 765. Same Case, 27 Eng. C. L. R. 323.) It has been held that a tenant for a definite term of years does not forfeit his term by orally refusing, upon demand of rent made by the landlord to pay the rent, and claiming the fee as his own. Of course, in such a case, if the rent was due and had been in arrear the requisite time, the landlord could take measures to terminate the estate; but such acts of the tenant would not ipso facto forfeit the estate. (Graves v. Walls, 10 Ad. & Ell. R. 427. Same Case, 37 Eng. C. L. R. 129.) If a tenant surrender the premises to a person claiming them adversely to the landlord, it is a forfeiture of the estate by the lessee. But the acts of the tenant in such a case must be unequivocal. (Ackland v. Sutley, 9 Ad. & Ell. R. 879. Same Case, 36 Eng. C. L. R. 312.) When a lease for life contained a covenant that the lessee should not sell or assign without the permission of the lessor, and the lessee did sell and assign a part of the premises with the consent of the lessor, it was held that this did not amount to a surrender of the premises. But in the same case it was decided, that, where wood is cut down on leased premises, by the lessee or his assigns, in such manner as materially to injure the inheritance, it is waste; and when the lease contained a clause of re-entry for a breach of the covenants and conditions in the lease, the lessee might maintain ejectment. (Jackson v. Brownson, 7 Johns. R. 227.) In a case in England, when the lessee covenanted not to demise, assign, transfer, or set over, or otherwise do or put away the lease or premises, or any part thereof, and afterward made an under-lease of the premises, it was

held not to be a breach of the covenant, for an under-lease is not an assignment. (Crusoe v. Bugby, 3 Wils. R. 234.) And in the state of New York, where a lessee for lives covenanted not to sell, dispose of, or assign his estate in the demised premises, without the permission of the lessor, and the lease contained a clause of forfeiture for non-performance of covenants, the court held, that a lease of part of the premises by the lessee for twenty years, was not such a breach of the covenant; and further, that nothing short of an assignment of his whole estate, by the lessee, would produce a forfeiture of the lease. It was also decided, that a sale of the whole premises under a judgment and execution against the lessee, would not work a forfeiture of the estate, unless there was some fraud or collusion on the part of the lessee. (Jackson v. Silvernail, 15 Johns. R. 278.)

So, where a lease for the term of seven years contained a like covenant, that the lessee "should not assign over, or otherwise part with the indenture, or the premises thereby leased, or any part thereof," and there was a clause of re-entry for a breach of covenants, the court held, that no forfeiture was incurred by an underletting for two years. (Jackson v. Harrison, 17 Johns. R. 66.) But a covenant by a lessee, that if the lessor or his assigns shall be minded to sell or dispose of his or their interest in the demised premises, he or they may do so, first giving the pre-emption to the lessee, and paying one-tenth of the purchase-money to him, provided, that if these be not due, the lease shall be forfeited, was held by the court to be valid; and the court decided that on the assignment of the lease by the lessor or his assignee, without offering the pre-emption and paying the tenth of the money to the lessor, the lease was forfeited. (Jackson v. Groat, 7 Cow. R. 285.) So also, a covenant or condition in a lease that in case the lessor should be minded to dispose of the premises, or any part thereof, he should give to the lessee the right of pre-emption or refusal of buying, and would not sell, without his leave, under his hand and seal first obtained; and that on every such sale, with such license he should pay to the lessee one-tenth of the purchase money for which the premises were sold, with a clause that in case of non-performance the estate demised should cease, and a clause of re-entry for a breach of the covenants; it was held, that the estate would be forfeited on failure of the lessee to perform any or either of the covenants, and that the lessor might bring ejectment

to recover the possession of the premises on such forfeiture. (Jackson v. Schutz, 18 Johns. R. 174.) But it seems that under a similar lease the fact, that the lessee had contracted to sell his interest in the demised premises, and to indemnify against the lessor's claim for the tenth sale, and the vendee had paid the larger portion of the consideration, and taken possession, is not a breach of the covenant, for the reason that there is not, by such contract to sell, any legal assignment of the lease, and hence the same was not forfeited. (Livingston v. Stickles, 8 Paige's R. 398; S. C. 7 Hill's R. 253.)

When the case of Livingston v. Stickles was in the court of errors, as reported in Hill, Nelson, C. J., laid down the rule, that, in general, a covenant or condition restraining the right of selling or assigning leasehold property is not broken by any act of the lessee which falls short of divesting his legal estate; otherwise, however, if it appear that the legal estate is continued in the lessee for the mere purpose of evading the covenant or condition, the equitable title having been transferred. The rule was further repeated that covenants and conditions of this nature are to be construed strictly as against the lessor. The courts are never disposed to favor the doctrine of implication, and more especially when applied to those cases where parties have entered into written contracts with express conditions. The well settled rule is, that "where the parties have entered into written engagements, with expressed stipulations, it is manifestly not desirable to extend them by implication; the presumption is that having expressed some they have expressed all the conditions by which they intend to be bound under that instrument." Upon this principle the supreme court of the state of Kansas held, where in a lease it was stipulated that if the lessors failed to pay rent at a certain time, and taxes, or to refund those taxes paid by the lessor, the lease should be forfeited; and where the lease contained afterward an independent agreement that the lessee should not assign the lease without the written consent of the lessor, with no penalty expressed, that a forfeiture of the lease was not incurred by a breach of the last condition, namely, the stipulation that the lessee should not assign the lease without the written consent of the lessor, as no penalty was expressly provided in case of a breach of this part of the lease, the penalty of forfeiture could extend to it only by implication; and therefore the court held that there could have been no intention on the part of the contracting parties to provide one; but to leave the parties to