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of the senate, who gave the opinion of the court, after declaring that the term waste is, in law, a technical term, but, that under the adjudications of the courts, has acquired a precise and definite meaning, proceeds to say: "If it were really advantageous and desirable to reduce this woodland into cultivation, it being done by the tenant without the consent of the landlord, would injure the latter in just so far as the value of the timber exceeded the expense of cutting it down and clearing the land. But injury is not, as has been said in this case, the test of waste ; but disherison of him in remainder or reversion. The tenant in this case has destroyed timber which he cannot reproduce; and has carried off the demised premises soil which he cannot restore. This is disherison. The estate in remainder or reversion is wasted. Whether the injury, resulting from that waste, be much or little, it is in either case still waste.” (Livingston v. Reynolds, 26 Wend. R. 115, 122.)
Even if a tenant cuts down trees for the purpose of repairing the buildings on the demised premises, he is guilty of waste if he afterward sells the trees, although subsequent to the sale he purchases back the trees, and employs them in the reparation of the buildings. It is the vendition which makes the cutting waste. So a tenant cannot sell trees, and with the money received on the sale cause the buildings to be repaired. (Coke Litt. 53, b.)
The authorities seem to indicate that if waste be committed in a dwelling-house, part of the property demised, only such parts of the dwelling-house are forfeited as the waste is committed in. Vide Jackson v. Tibbitts, 3 Wend. R. 341.) Sheppard says: “That the plaintiff in this suit (action of waste), if he recover, shall recover treble damages and the place wasted; that is, if it be the whole house, the whole house; if it be one or two rooms sparsim, those rooms; if it be in a close, so much of the close as is wasted.” (Faithful Counsellor, 553.) Lord Coke says: “If waste be done in houses, so many rooms shall be recovered wherein there is waste done; but if waste be done sparsim throughout, all shall be recovered." (Coke Litt. 54, a.)
. ) But perhaps it is unnecessary to dwell longer on this particular branch of the subject. Suffice it to say, that voluntary waste always determines the tenancy; and it seems quite well in this connection to understand what constitutes waste, so as to justify a re-entry by the lessor.
If it be covenanted in a lease, that in case the lessor should suffer or permit more than one person to every hundred acres to reside on, use or occupy any part of the premises, the lease should be void," and the lessee lets part of the premises for a year, to persons to cultivate for shares, in the proportion of more than one to each hundred acres, it is a breach of the covenant and defeats the lease. (Jackson v. Brownell, 1 Johns. R. 267. Jackson v. Rich, 7 ib. 194.) But where the quantity of land demised was one hundred and thirty-five acres, and the lease contained a like covenant, it is held not to be a breach for the lessee to permit another tenant to occupy the premises besides himself. (Jackson V. Agan, 1 Johns. R. 273.)
When the lessee covenants to keep the demised premises in repair and leave them in good condition at the expiration of the term, with the clause allowing the lessor to re-enter in case of a breach of the covenants in the lease, and the tenant fails at any time to keep the premises in such repair as is contemplated by the lease, the landlord may recover the premises at once on the happening of the breach. (Vide Schieffelien v. Carpenter, 15 Wend. R. 400; Luxmore v. Robson, 1 Barn. & Ald. R. 584.)
A covenant in a lease, “not to permit any trade or business whatsoever,” to be exercised upon the demised premises, is broken by an assignment to a schoolmaster, who kept his school upon the premises. (Doe v. Kuling, 1 Maule & Sel. R. 95.) And a covenant that the lessee shall not exercise the trade of a butcher upon the premises, is broken by selling there raw meat by retail, although no beasts were slaughtered there. (Doe v. Spry, 1 Barn. & Adolph. R. 617.) So also, it seems, a covenant not "to use premises for the sale of pork,” would be broken by exposing carcasses of swine on the premises, and making bargains there for sale, although the carcasses be taken to another place to be cut up, and the bills for the meat supplied be made out as from the premises where the cascasses were cut up. (Coe v. Elsam, 1 Mood. & Malk. R. 189.) But a proviso for re-entry if the lessee shall permit any person to inhabit the premises who should carry on certain specified trades (that if a licensed victueller not being one), or any other business. that might be, or grow, or lead to be offensive, or any annoyance or disturbance to any of the lessee's tenants, is held not to be broken by the opening of a public house. (Jones v. Thorn, 1 Barn. & Cres. R. 715.)
Where a lease contained a covenant “to insure and keep insured a given sum of money upon the premises during the term, in some sufficient insurance office,” the lessee having insured the proper sum, but omitted to pay the annual premium within the time allowed by the office for payment; this was held by the court to be a forfeiture of the lease under a clause of re-entry, although he paid the premium within fourteen days after such time, and no action had been commenced, and no accident had happened by fire to the premises in the mean time. (Doe v. Sherwin, 3 Camp. R. 134; Doe v. Peck, 1 Barn. & Adolph. R. 428; vide Rolfe v. Harris, 2 Price's R. 206; Reynolds v. Pitt, Ib. 212; Beaudrip v. Buckly, Ib. 200.)
A covenant in a lease to deliver up, at the end of the term, all the trees standing in an orchard at the time of the demise, “reasonable use and wear only excepted, is not broken by removing trees decayed and past bearing, from a part of the orchard which was too crowded. (Doe v. Crouch, 2 Camp. R. 449.) But a covenant not to remove or grub up trees, is held to be broken by removing trees from one part of the demised premises to another; and also by taking away trees, although the lessor plant a greater quantity than he takes away. (Doe v. Bird, 6 Carr. & Pa. R. 695.)
A lease with a clause of re-entry for non-performance of covenants, contained a general covenant on the part of the lessee, to keep the premises in repair, and also another independent covenant to repair, within three months after notice; the landlord after serving the tenant with a notice to repair forthwith, was allowed to bring an ejectment within the three months for a breach of the general covenant to repair. (Roe v. Paine, 2 Camp. R. 520.) But where, on similar covenants, and with a similar clause of reentry, the landlord gave a notice to repair within the three calendar months from the date of the notice, it was held that he had, by such notice, precluded himself from insisting on the forfeiture until the expiration of the three months. (Doe v. Meux, 4 Barn. & Cres. R. 606; vide Doe v. Brindley, 4 Barn. & Adolph. R. 84.)
A proviso giving power of 're-entry, if the lessee “shall do or cause to be done any act, matter, or thing contrary to, and in breach of any of the covenants,” is held not to‘apply to a breach of covenant to repair, the omission to repair not being an act done within the meaning of the proviso. (Doe v. Stevens, 3 Barn. &
Adolph. R. 299.) And it is held that a proviso giving power of re-entry if the tenant make default in performance of any of the clauses, by the space of thirty days after notice, does not apply to the breach of a covenant not to allow alterations in the premises, or permit new buildings to be made upon them withont permission, and no forfeiture is incurred by the erection of a portico contrary to such covenant, and a neglect to remove it after notice. (Doe v. Marchetti, 1 Barn. & Adolph. R. 715.)
The breaking of a doorway through the wall of a demised house into an adjoining house, and keeping it open for a long space of time, has been held to amount to a breach of covenant to repair. (Doe v. Jackson, 2 Stark. R. 293.) So also pulling down a brick wall dividing two court yards, has been held a breach of covenant “ to repair and maintain the brick walls,” etc. (Doe v. Bird, 6 Carr. & Pa. 195.) But when the covenant was “to repair and keep in repair the premises, and also such buildings, improvements and additions as should be made thercon by the lessee,” it was held that no forfeiture was incurred by changing the house into shop windows, stopping up a doorway, and making a new one in a different place; the covenant being only against nonrepair, and it being implied by the terms of the lease, that additions or improvements were to be made. (Doe v. Jones, 4 Barn. & Adolph. R. 126.) Where a lease contained a general covenant to repair, and a further covenant that if the lessee did not repair after notice, the lessor might enter and do the repairs himself, with right of distress for the amount of such repairs ; and the lease also contained a proviso for re-entry upon breach of any covenant, and the lessor gave the lessee notice to repair the premises within the period given by the lease, and that if he, the lessee, did not repair within such period, he, the lessor, would perform the repairs, and charge the lessee with the expense, and the premises were not, in fact, repaired by either party; it was held, that the lessor, having elected to perform the repairs, and charge the lessee with the expense, could not proceed to recover the premises . as on a forfeiture. (Doe v. Lewis, 5 Adolp. & Ell. R. 277.)
A covenant for a landlord to be allowed to come into a house to see the state of repair at “convenient.time,” is held not to be broken by his not being allowed to go into some of the rooms, if the tenant had no previous notice of his coming. (Doe v. Bird, supra.)
If the possession of the demised premises be severed by assignment, and the parties occupy in severalty, and each pays a portion of the rent, which is credited on the lease generally, if either commits an act forfeiting the estate by the terms of the lease, the whole premises are forfeited. (Clarke v. Cummings, 5 Barb.
The principle governing these cases of forfeiture by reason of breach of covenants, is the same whether the tenancy be created by deed, or the tenant holds under an agreement for a lease, which specifies the covenants to be inserted in the lease, and that there shall be a power of re-entry, for a breach of them. (Doe v. Beach, 6 Esp. R. 106. Vide also Doe v. Watt, 8 Barn. & Cres. R. 308. Doe v. Phillips, 2 Bing. R. 13.)
THE ACTION OF EJECTMENT AS BETWEEN LANDLORD AND TENANT — WHO
MAY TAKE ADVANTAGE BY FORFEITURE OF THE BREACH OF COVENANTS OR CONDITIONS OF FORFEITURE GENERALLY OF THE WAIVER OF THE FORFEITURE - OF THE SURRENDER OF A TENANCY.
A REVERSIONER may take advantage of a forfeiture, but to enable him to do so, it is necessary that he should have the same estate in the lands at the time of the breach, as he had when the condi. tion was created; an extinguishment of the estate in reversion, in respect of which the condition was made, extinguishing the condition also. (Dumpor': Case, 4 Coke's R. 120, 6.) For example, where a lease was made for a hundred years, and the lessee made an under lease for twenty years, rendering rent, with a clause of reentry, and afterward the original lessor ganted the reversion in fee, and the grantee purchased the reversion of the term, it was held, that the grantee should not have either the rent or the power of re-entry, for the reversion of the term to which they were incident was extinguished in the reversion in fee. (Threr v. Barton, Moor's R. 94. Webb v., Russell, 3 Term R. 393, 402) So also, it is held that the reversioner must be entitled to the reversion at the time the forfeiture is committed, or he cannot take advantage of it. As an illustration, a forfeiture by tenant for years in levying a fine,