created as at the time of their creation ;" and the distinction between such a defeasance and a condicional license is only in the name,t as each reannexes to the term the condition declared to be discharged.‡

We have been thus particular in the examination of these cases, because they are doubtless the foundation of the doctrine of Dumpor's Case as a modern rule of law, and are usually referred to, as if expressly confirming that case in terms, whereas it was in issue, necessarily only in the first, and collaterally in the last. In one of the remaining four, it did not arise even in the remotest degree; and, in the other three, was so far from being confirmed that these merely established a second exception thereto; namely, that a waiver is no discharge, which is in effect as clear a denial of the entirety of a condition as the earlier and original exception of apportionment by act of law.

What is a license, upon which so much stress is laid as a dispensation not of the breach, but of the condition itself? It is simply "an excuse for a trespass." It is personal merely, and operates to relieve the party, otherwise chargeable with a breach of duty, from the consequence of that one default. It does not relieve him any further, and cannot justify any other default or series of defaults, nor enlarge his estate. These are elementary principles, for which a citation of authorities would be absurd. But what other or less is a waiver? It equally relieves from the consequences of the default or trespass when committed, and sanctions that, when done, which the license permitted to be done. Each therefore presupposes the trespass; that is, that the condition is broken, and each accepts and ratifies and adopts that state of facts. If, therefore, the condition is gone by a license, it is equally so by a waiver; and in holding that a waiver does not discharge the condition but the breach only, we recognize

*2 Prest. Conv. 198, 199. So 2 Greenl. Cruise, 10 n. "Under the learning of defeasance a mode may be resorted to by which the objection generally made to give a license to assign can be obviated. Upon the assignment with license a deed of defeasance should be executed in order to determine the lease on alienation by the lessee." Sheph. To. 195.

Thus the condition in Fox v. Whitchcocke is called equally a defeasance. 1 Bulst. 290.

Williams, Real Prop. 354.

not merely a return to common-sense interpretations, but the adoption of a doctrine radically inconsistent with Dumpor's Case.

But this logical consequence of these exceptions does not seem to have been apprehended, and we still find the courts reasserting them, and deciding in accordance therewith, and yet referring to Dumpor's Cuse, as if this was not affected by them. In Doe v. Pritchard* the demise was on condition of re-entry, if the lessee became "insolvent and unable to go on with the lease." After this happened, the lessor accepted rent; and it was claimed, in defence to his ejectment, that this waived the forfeiture. It was contended in reply that the one breach might be, but that the condition still subsisted, as it imposed a continuous duty. The court held that the breach was complete once for all; and that Dumpor's Case did not apply at all, because, as there was no breach after the waiver, the question of the continuance of the condition did not arise, Taunton, J.,remarking obiter: "There is a difference between waiving the condition as in Dumpor's Case and waiving the particular breach. The courts in modern times have been inclined in such cases to consider the breach overlooked rather than the condition as waived.† But the waiver of the condition is not necessary to the argument," &c.

In order to reconcile the asserted authority of Dumpor's Case with the admitted exceptions, text-writers have been driven to assert new distinctions. Thus an able author, after quoting Sir James Mansfield's comments thereon, suggests that, while a waiver will not discharge the condition against underletting and the like, it will a condition against assigning, as here the breach is complete once for all. On the other hand, a prominent English real property writer,§ who is followed by a recent American writer|| asserts that, after the waiver of one assignment, the lessor may re-enter for a new one. And it is a sufficient answer to the former to say that there is no authority for any such proposition in any decided case. Doe v.

* 5 B. & Ad. 689. +4 Tauot. 735.

Smith, Landl. & T. *117. § Burton, R. P. Comp. § 853.

Washburn, Real Prop. *317.

Bliss went on the ground of the "toleration" or waiver, not of the character of the act prohibited by the condition, and the dictum of Patteson, J., in Doe v. Pritchard, was, as we have seen from the statement of that case, wholly obiter.

On the other hand, it has been suggested that a license of a condition to underlet and the like, which from its nature is susceptible of more than one breach, will not discharge the condition, but the breach only. This proposition, which we shall notice hereafter in considering the doctrine of continuous conditions, though without the support of expressed modern decisions, and contrary to the opinion of some text-writers, is based on the doctrine that a condition may be suspended; which is well sustained by the older authorities. Thus in a case decided 10 Eliz. (anno 1568),§ it was held that upon the seizure by a judgment creditor, under an elegit, of a moiety of the reversion, "le condicion fuit suspend pur tout," meaning, apparently, that the condition would revive when the rent of the moiety had discharged the execution. Numerous similar determinations are mentioned by Mounson and Harper in their judgments in Winter's Case. So in a later case,¶ it was held that the second grantee of a reversion might avail himself of a condition reserved on a lease, though his mesne grantor could not. And this doctrine of suspension constitutes a third exception to the ideal entirety of a condition as conceived in Dumpor's Case, and one which, equally with apportionment and waiver, are rather contradictions than exceptions thereto.

The American decisions relating to the rule in question are open to exactly the same comment as the English cases already discussed, and even in a stronger degree; as, with a single and somewhat doubtful exception, there has been no decision directly in point, and the rule has been recognized only to be distinguished, and solely on the ground advanced in Brummell v. Macpherson. In England, owing to the express adoption of the rule

* 5 B. & Ad. 781.

+1 Smith, Lead. Cas. (5th Am. ed.) 91. Woodfall, L. & T. (10th ed.) 550.

§ Moor. 91, pl. 225.

|| Lee v. Arnold, 4 Leon. 27, 28.

¶ Pain v. Malory, Cro. Eliz. 832, (43 Eliz.)

by this case, it remained the law until repealed by statute;* but in this country there is really nothing, with the exception above noted, and occasional dicta, more or less clear, to support it; and it has in no case been examined or approved on its intrinsic soundness. It stands, as it has been emphatically described by Mr. Williams, as an "artificial and technical rule which . . . owes its origin to an antiquated system of endless distinctions without solid differences." Bearing in mind then the clear distinction between the rule and the doctrine of non-apportionment which we have already sought to point out; and that the latter doctrine, whatever may have been its original soundness and proper limits, bears no analogy whatsoever to the rule in question, or gives any support thereto in the decisions which have enforced it, we proceed Tinkham v. Eric R. R., 53 Barb. 393.

to examine the decisions in any way properly relating to Dumpor's Cuse in this country.

In Massachusetts there are certainly but two; and these of little pertinency. In the first, which is sometimes referred to as a case of waiver, the condition was in reality merged by the grantee's subsequently acquiring the whole of the reversionary estate. In fact it appeared that there had actually been no breach, because there was no refusal to perform the obligation. In the latter case there was merely a dictum on the subject, the question being whether a covenant had been discharged by a license; and the court held that it had not, adding: "It is not the case of a condition which when once dispensed with is discharged for all purposes, and cannot be revived," which was not necessary for the decision.

In Missouri the authorities are similarly unsatisfactory. In an early case || it is said: "Dumpor's Case, though much criticised by eminent judges, is still adhered to as law;" but it was held not to apply to contracts not touching the reality, and a condition in a policy of insurance that the insured should notify the com

* 22 & 23 Vict. c. 35; 23 & 24 Vict. c. 28. + Williams Real Prop. 262. T

Van Rensselaer v. Jewett, 5 Denio, 121, § Merrifield v. Cobleigh, 4 Cush. 178; Gannett v. Albree, 103 Mass. 372, 374.

Tenn. M. & F. S. Co. v. Scott, 14 Mo. 46.

pany of a change of ownership, was held binding, after one assent to such a change had been given. There was, however, no soundness in the distinction attempted between real and personal contracts, and the ground taken, in fact controverted the rule of the case referred to. A like dictum occurred in McGlynn v. Moore ;* but the single point decided in that case was, that acceptance of rent after the .structure is completed waives defects in performance of a contract to build. Dougherty v. Matthews,† at first sight, seems more in point; a promise by an assignee of a lease, conditioned against the lessee's assigning, to pay the lessor for his permission to assign being held nudum pactum. But the decision did not go on the dispensation of the condition by one assignment; but on the ground that the lease not being under seal and the condition in terms applying only to the lessee and not mentioning assignees, its obligation was personal to the lessee and could not bind assigns. The court say:

"The lease is not stated

to be under seal, and therefore the case does not come within the doctrine of covenants running with the land." "The plaintiff proceeds on the assumption that the assignee could not himself assign the lease without the consent of the lessor; but it is not made to appear by anything contained in the petition that such consent was at all necessary," &c. This is exactly the anonymous case n Dyert herein before referred to, and is undoubtedly sound.

A case occurs in the early California reports, whose looseness seems to accord with the generally unsettled state of things in that region at that day. It is held that a "covenant" [sic] against assigning without license is discharged by one authorized transfer. Dumpor's Case is referred to, from which we may perhaps infer that there was a condition as well as a covenant here. The court, however, repeated that the "covenant" was discharged and add : "It is questionable whether in any case such a covenant would be enforced to produce a forfeiture. It is in restraint of alienation,

* 25 Mo. 384.

+ 35 Mo. 520.

+ Dyer, 66, a.

Chipman v. Emeric, 5 Cal. 49.

and therefore against the policy of the law." We do not know that much comment is necessary upon the opinion of a court that was ignorant that it is only conditions upon grants in fee that are so void.* But as assigns do not appear to have been mentioned in this condition, the decision stands well enough on the same ground as the preceding one, though not adverted to by the court.

In Virginia the point has been referred to in one well-considered case. It was held here that one underletting was waived by the receipt of rent subsequently accruing; and the case in fact was the same as Doe v. Bliss, which was held to be conclusive. Dumpor's Case was referred to and distinguished, and did not even receive the qualified approval which it has at times had.

In Pennsylvania the point seems to have arisen twice. In the first cases the facts are quite complicated; but, so far as they relate to our present inquiry, seem to be that the plaintiff, then holding a leasehold interest in certain mills, transferred this to the defendant, on the agreement that he was to receive advances from the latter, who was also, as well as plaintiff, to give his personal services in working the mills, and neither was at liberty to assign without permission. There was no mention of assigns of either party. The defendant, with the plaintiff's assent, was discharged from his undertaking, and another person substituted. But he desiring subsequently to withdraw, the defendant sold out to a new party, and it was claimed that this was a forfeiture of his interest. The court, indeed, held otherwise as a matter of strict law, but gave relief in equity by decreeing a reconveyance. It is remarked incidentally, that a condition once dispensed with is wholly gone. It may be conceded that this was so in this case, as the condition was personal to the grantee, and had been expressly released. It was not the case of a mere license, but of an entire substitution and discharge. But, apart from this consideration, the condition could not apply beyond the first alienation, as it did not run beyond the

* Depeyster v. Michael, 6 N. Y. 467. + McKildoe v. Darracott, 13 Gratt. 278. 4 Taunt. 735.

§ Dickey v. McCullough, 2 W. & S. 88.

grantee or to his assigns, and so is exactly within the comment on the case of Dougherty v; Matthews, supra.

The second case* is even less to the point. It was ejectment by the vendor against the vendee for breach of a condition to erect a breakwater and bloomery in two years. The former was built, the latter not; but, after the time had expired, a different structure was substituted, with the grantor's consent therefor. The terms waiver and license are somewhat loosely employed here; but it is evident that neither was correct, as to anything but the time of the obligation. The case was simply one of substituted performance, which of course repels the idea of forfeiture; and the reference of the court to Dumpor's Case is entirely unapt. It is to be noticed that the court apparently does not yield to the distinction between realty and personalty set up in the Missouri cases and herein before commented

on.

Lastly, the point has been touched upon in New York in more than one instance. The earliest seems to have been Fletcher v. Smith.† Dumpor's Cuse was referred to, and the unfavorable opinion of Sir J. Mansfield is quoted:

That the license should only have sanctioned one assignment, and that a subsequent assignment without license should forfeit the estate;" in other words, that that case was not law. It was, at all events, entirely inapplicable to this one, and was so held; first, because here there was no license, but a waiver only; and, secondly, on another ground shortly to be considered. Then followed Dakin v Williams, twice reported.‡ On the first argument it appeared that the case simply was one of covenant, not condition, and Dumpor's Case was held clearly not to apply, and was accordingly distinguished, Nelson, C. J., adding: "The reasons of that case do not seem very satisfactory or conclusive . . . The common sense view of the license to the lessee only, and the one coinciding with the apparent intent of the parties, would seem to be that it merely enabled him to alien the premises, leaving the operation of the covenant [condition]

*Sharon Iron Co. v. City of Eric, 41 Pa. St.

341.

+13 Wend. 530.

17 Wend. 447; 22 id. 201.

in the lease in full force upon the assignee.. To say that it empowered him to assign an absolute estate to the extent of his interest, free from the condition, is assuming the point in question." He then proceeds to say that the law of Dumpor's Case was well settled, &c. With all deference to this excellent magistrate, we think we have shown that this was not. so. It is indeed a little singular to find so sound a judge next mentioning as part of the same doctrine the non-apportionment of a condition upon severance of the demised premises. That Lord Ccke endeavored to deduce both from the same tenet-the entirety of a condition-is indeed true; but that Dumpor's Case failed wholly to derive any just support from the notion that the grantor on reentering must be in of his old estate we think we have fully shown; whereas the letter though not the spirit of that canon did support the latter idea. Yet even as to this apportionment, the judge adds: "I am free to confess that I see no practical difficulty in this respect." At the second hearing a similar view was entertained, and Dumpor's Case held not to apply. The subsequent case of Lynde v. Hough* may be readily disposed of. The condition being without mention of assigns, and against underletting merely, the case would in this view have been nearly the same as McKildoe v. Darracott, Doe v. Bliss, &c., and the reference to Dumpor's Case, as one which, though "wondered at since Lord Mansfield's time, has never been denied," was wholly uncalled for. But as if to make this dictum of even feebler relevancy, it appears that the underlease was by an assignee, and as there was no condition whatever against assignment the assignee was not within the condition at all precisely as in Dougherty v. Matthews, and for even stronger reasons. To the quite recent case of Siefke v. Kocht the same comment seems to apply, as it does not appear that there was any condition binding the lessee's assigns.

It will be apparent, from this review of the cases, that there is not one which is exactly parallel with Dumpor's Case, and that the two or three in which this was not referred to as wholly irrelevant,

* 27 Barb. 415.

+31 How. Pr. R. 383.

went in reality upon a different state of facts. But a ground appears in several of them, as well as in numerous other modern cases, which is in addition to the several established principles in conflict with Dumpor's Case heretofore noticed, and if logically carried out does, we think, dispose of that decision as authority for

ever.

This is the doctrine of continuous conditions, into which class, however viewed, that in the case in question will be found strictly to fall. We assume it as proved that there is no distinction between waiver and license; that this distinction was only introduced to avoid Dumpor's Case, but had in reality no foundation at common law. We find that even as early as Mucher v. Foundling Hospital,* it was held by Lord Eldon that a waiver by acceptance of rent, of a breach of a condition not to carry on any trade, must be restricted to the trade so permitted, and was equivalent to "that sort of license which it would have been prudent to give," and could not be construed as a license for any other; thus recognizing at once that a license was in fact no more than a waiver, and that such a condition bound as to everything not expressly waived. The same principle underlies in fact all the decisions restricting a second sublease, notwithstanding the permission to make a first one. Such were Doe v. Bliss, McKildoe v. Darracott, and other cases already commented on. Of course it is meant that the obligation of the condition is continuous, but not that the occupation under the first demise is a continuing forfeiture. It is true that in some of these cases the condition against assigning has been distinguished as capable from its nature of one breach only. But such a distinction is without foundation. If the condition was solely framed to bind the lessee, it might be otherwise, as the condition with its covenant is perhaps unable to run without the mention of assigns, and on this ground the cases

* 1 Ves. & B. 188.

Ireland v. Nichols, 46 N. Y. 413. So see Doe v. Ross, 4 B. & C. 384, where a forfeiture of a condition against lessee's insolvency was held not continuous by continued non-payment of scheduled debts; and Doe v. Pritchard, 5 B. & Ad. 765, where a like decision was made.

See 7 Am. Law Review, 260, 261; also Dyer, 66 a, and cases ante.

of Dougherty v. Matthews, and others herein before referred to, are probably sound. But where assigns are mentioned, the condition is necessarily continuous, because it applies in terms to persons who can only come under its force after one authorized breach; and it presents a stronger case than that of a condition against underletting, because it extends expressly where that and similar conditions apply only by inference. It is idle to say that the condition against assigning is entire, for the very question is, whether it does not properly come under what is a perfectly established exception to that entirety.

or

The doctrine has indeed not been confined to cases of underletting. Similar decisions have been made in regard to conditions against using rooms in a particular manner; keeping premises in repair or insured ;† keeping up a particular number of trees on the estate, way open, and the like. Indeed, in a recent case, this doctrine was carried so far that a condition against "leaving" a church membership was held continuous, as if the grantee in that case resembled the party in the ballad, who "often took leave, yet was loathe to depart," and remained in a permanent state of departing. We can hardly understand the view of the court in this case, and should conceive that the case rather resembled Doe v. Ries and Doe v. Pritchard, already cited. However this may be, it is clear that the law of continuous conditions is well established, at the present day, and that such a condition as that in Dumpor's Case comes fairly within its purview.

We conceive, therefore, that we have shown that the rule in question was never good law, of recognized authority, or in accord with modern decisions: that to overrule it, or, rather, to repudiate its imaginary authority, will not only relieve the law of to-day of an incubus, and bring our system of real property into harmony with common sense; but will, in so doing,

*Doe v. Woodbridy, 9 B. & C. 399.

+ Doc v. Gladwin, 6 Q. B. 953; Doe v. Jones, 5 Exch. 498; Bennett v. Herring, 3 C. B. N. 8, 470; Doe v. Shewin, 3 Campb. 134.

Bleecker v. Smith, 13 Wend. 330.
Jackson v. Allen, 3 Cow. 220.

Crocker v. Old South Soc., 106 Mass. 489.