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therein mentioned; and a covenant by him " to pay the taxés,” shall have the effect of a covenant that all taxes, levies, and assessments upon the demised premises, or upon the lessor on account thereof, sball be paid by the lessee or those claiming under him.
$ 18. In a deed of lease, a covenant by the lessee that "he will not assign without leave,” shall have the same effect as a covenant that the lessee will not, during the term, assign, transfer, or set over the premises, or any part thereof, to any person, without the consent, in writing, of the lessor, his representative or assigns. And a covenant by him that "he will leave the premises in good repair," shall have the same effect as a covenant that the demised premises will, at the expiration or other sooner determination of the term, be peaceably surrendered and yielded up unto the lessor, his representatives or assigns, in good and substantial repair and condition, reasonable wear and tear excepted.
$ 19. No covenant or promise by a lessee, that he will leave the premises in good repair, shall have the effect, if the buildings are destroyed by fire, or otherwise, without fault or negligence on his part, of binding him to erect such buildings again, unless there be other words shewing it to be the intent of the parties that he should be so bound.
$ 20. A covenant by a lessor " for the lessee's quiet enjoyment of his term,” shall have the same effect as a covenant that the lessee, his personal representative and lawful assigns, paying the rent reserved, and performing his or their covenants, shall peaceably possess and enjoy the demised premises, for the term granted, without any interruption or disturbance from any person whatever.
$21. And if in a deed of lease it be provided that “the lessor may re-enter for default of
days in the payment of rent, or for the breach of covenants,” it shall have the effect of an agreement that if the rent reserved, or any part thereof, be unpaid for such number of days after the day on which it ought to have been paid, or if any of the other covenants on the part of the lessee, his personal representative or assigns, be broken, then, in either of such cases, the lessor, or those entitled in his place at any time afterwards, into and upon the demised premises, or any part thereof, in the name of the whole, may re-enter, and the same again have, re-possess, and enjoy, as of his or their former estate.
9. What is included in a covenant extending to the property
conveyed; whether there is a warranty of the quantity of land.
The Code of Virginia, (ch. 117, 97, p. 504,) like the statute of 8 and 9 Vict. p. 1942, ch. 119, and p. 1962, ch. 124, provides that every deed conveying land shall, unless an exception be made therein, be construed to include all buildings, privileges and appurtenances of every kind belonging to the lands therein embraced. A covenant extending to the property conveyed will, in Virginia, no less than in New York, include the fences as well as the trees, buildings, mines, quarries and other things granted. Mott v. Palmer, 1 Comstock 573.
Where there is no special warranty of quantity, and the quantity proves short of that mentioned in the deed, it has been attempted to sustain an action of covenant on the general warranty of the premises. Such an attempt has failed in South Carolina. Bauskett v. Jones, 2 Spears 68.
10. Of covenants in a lease ; how far lessee is liable under
a covenant to pay taxes &c. ; effect of disturbing his quiet enjoyment; when rent is apportionable.
There is sometimes a difficulty in construing a covenant to pay taxes when it makes a distinction between “fresh taxes" and other taxes. Watson v. Atkins, 3 Barn. & Ald. 647; 5 Eng. Com. Law Rep. 411. The case is generally more clear when broad and general terms are used. Payne v. Barridge, 12 M. & W. 728.
A covenant by a lessee to discharge all rates, taxes and assessments which the premises shall be liable for or which shall be raised, levied or assessed on the same during the continuance of the lease, is not restricted to assessments authorized by the law existing at the execution of the lease ; but binds the lessee or assignee to provide for all assessments, whether imposed according to laws then existing or those subsequently enacted. Post v. Kearney, 2 Comstock 396.
When there is a covenant for quiet enjoyment against any let, suit, disturbance or interruption by the defendant or others claiming, by, from or under him, these words imply a claim by title from the lessor. If therefore there be claim against him for rent due from him before the demise, a distress for such rent is not a proceeding within the terms of the covenant. Stanley v. Hayes, 3 Adol. & El. N. S. 106; 43 Eng. Com. Law Rep. 652.
On a covenant that the lessee shall during the term quietly enjoy the premises, the plaintiff should not commence his action until the arrival of the time prescribed for the term to begin. Ireland v. Bircham, 2 Bingh. N. C. 90; 29 Eng. Com. Law Rep. 266.
An eviction by a landlord of his tenant from part of the premises does not put an end to the tenancy or discharge the tenant from the performance of his covenant other than the covenant for the payment of rent. Newton v. Allen, 1 Adol. & El. N. S. 518; 41 Eng. Com. Law Rep. 518 ; Morrison v. Chadwick, 7 Man. Grang. & Scott 283; 62 Eng. Com. Law Rep. 283. It does however create a suspension of rent. S. C.; 1 Wms. Saund. 204, note (2.)
In covenant as between lessor or lessee, where the action is personal and upon a mere privity of contract, and on that account transitory, as any other personal action is, the rent is not apportionable. Bro. Abr. Contract, pl. 16; Moor 116; Finch's Law Lib. 2, c. 18; Stevenson v. Lambard, 2 East 579 ; Holgate f'c. v. Kay, 1 Car. & Kirw. 341; 47 Eng. Com. Law Rep. 341.
A lease made by a mortgagor not binding the mortgagee, he has in Massachusetts under the statute of 1785, c. 22, $ 2; R. S. c. 107, § 1, a right under his paramount title to enter as against the lessee. 15 Mass. 270; Reed v. Davis f.c. 4 Pick. 216. The lessee being thus evicted, such eviction is a good defence to an action against him by the lessor for rent which had not become due before the mortgagee entered and ousted him. Smith v. Shepard, 15 Pick. 150; Stone v. Patterson, 19 Id. 476; Welch v. Adams, 1 Met. 494. Under the rule stated in 1 Rob. Pract. 441, the lessee having the whole day to pay a quarter's rent, when the mortgagee's entry was during that day, the lessor failed to recover the quarter's rent. 15 Pick. 150. This was a case in which the quarter's rent was due by covenant in advance. The enjoyment of the land being the consideration for the payment of rent, it was considered that when the prospective enjoyment of the estate was taken away, the obligation to make the prospective payment ceased.
Although rent is not apportionable in an action of covenant as between lessor and lessee, it is apportionable in an action of debt; and it is apportionable in an action of covenant against an assignee upon a covenant running with the land. Being chargeable on the privity of estate, and in respect of the land, his rent is apportionable in covenant as it would be in debt. Stevenson v. Lambard, 2 East 575.
11. How covenant to repair must be performed, when the house
is destroyed by fire.
When a duty is cast upon a person by the law-not by his own voluntary contract—he may be excused from performing that duty by its becoming impossible by the act of God. Queen v. Leicestershire, 15 Adol. & El. N. S. 88; 69 Eng. Com. Law Rep. 88. And a man may be excused from a duty imposed upon him by the law, if he is disabled from performing it without any fault of his own. Yet when by his own contract he creates a duty or charge upon himself, he is bound to make it good notwithstanding any accident by inevitable necessity ; because he might have provided against it by his
contract. 6 T. R. 750; Walton v. Waterhouse, 2 Saund. 422 a, note; 16 Mass. 240.
A lessee covenants that he will keep in repair, support and maintain all the fences and buildings, saving and excepting natural decay; and that at the determination of the lease he will leave and yield up the premises in as good condition as the same were in at the date of the lease, reasonable use and wearing thereof excepted. 7 C. & P. 129; 32 Eng. Com. Law
& Rep. 464. The house and fences are by accident, during the term, consumed by fire; 10 the surprise of the lessee, he is called on to rebuild, and failing to do so, an action is maintained against him for breach of his covenant; the court saying he might have guarded against it by introducing such an exception as is generally adopted in mercantile contracts, “ fire or other casualty excepted." Phillips v. Stevens, 16 Mass. 238.
In New York as well as Massachusetts, the courts have recognized the rule established by the cases of the Earl of Chesterfield v. Duke of Bolton, Com. 627; Bullock v. Dommitt, 6 T. R. 650; 2 Chitty's Rep. 608; 18 Eng. Com. Law Rep. 431; Brecknock Navigation Co. v. Pritchard, 6 T. R. 750 ; Digby v. Alkinson, 4 Camp. 275; holding that on a general covenant by the lessee to repair he is bound to rebuild in case of destruction of buildings by an accidental fire, or of a bridge by an extraordinary flood. And when there is such a covenant by the lessor, it receives a like construction. The supreme court of New York considered there was no doubt but that by a covenant to repair like that in Allen v. Culver, 3 Denio 294, the lessors were bound to rebuild in case of total destruction by fire; and that the lessee might have his action to recover the damages sustained by reason of the non-performance of this covenant. Nor is this rule of construction confined to cases of landlord and tenant. Brecknock Navigation Co. v. Pritchard, 6 T. R. 750 ; Beach v. Crain, 2 Comstock 94. A right of way or road is released through the grantor's lands; he agreeing to erect a good and substantial gate at the terminus of such road; and the grantees covenanting that all the repairs necessary to be made to said gate should be made by them. The gate is erected by the grantor and removed by some person unknown; it is held the grantees are bound to replace it. S. C.
In Virginia the courts have been averse to extending the doctrine of the tenant's liability in any degree beyond the adjudged cases. 8 Leigh 532. An agreement in a lease of a lot that a tenant will at the expiration of the term “return the said property with all its appurtenances," has in Virginia been construed as looking to the return in opposition to holding over—not to the hazards of fire or other casualty. Mills and a carding machine being consumed (accidentally or by some unknown incendiary) by fire, it was held under such an agreement that the lessee was not bound to rebuild the premises and return them as he received them. Maggort v. Hansbarger, 8 Leigh 532.
The harshness of the rule established by the English cases is also lessened by $ 19, of ch. 117, of the Code, cited ante,
12. Whether lessee must pay rent although the house is de
stroyed by fire.
In the United States, a lessee for years who has covenanted to pay rent during the term, has been sometimes surprised when he was held to pay it after the buildings, which alone were valuable, were destroyed by fire. Fowler &c. v. Bott fc. 6 Mass. 63; 16 Id. 240; or by ice, Ross v. Overton, 3 Call 309; 2 H. & M. 408. An American court will say, it is a hard case upon the lessee; and if the court could, consistently with settled principles, relieve him, it would most willingly do it; but it cannot be done without overturning a series of decisions to which the court is bound to conform. It sits “jus dare,” not "jus facere." Hallett v. Wylie, 3
' Johns. 47.
The English decisions shew that on an express covenant to pay rent during the term, an action may be maintained for the whole rent stipulated to be paid, and for the whole time, notwithstanding there may be a fire which burns down houses on the leased premises and deprives the lessee of the enjoyment thereof for part of the term. Paradine v. Jane, Alleyn 27; Monk v. Cooper, 2 Str. 763; 2 Ld. Raym. 1477; Belfour v. Weston, 1 T. R. 310. The same rule has been acted on in a case wherein the agreement was not by deed. Baker v. Holtpzafell, 4 Taunt. 45. And it matters not whether there is an agreement in writing for a term of years, or only a tenancy from year to year. Until this last tenancy is determined by a notice to quit, it is, as to its legal character and consequences, deemed the same as a term of years; the relation of landlord and tenant continues, notwithstanding the consumption of the premises by fire; and the tenants holding under such tenancy have been held liable to the payment of rent, not only to the end of the quarter, which was current at the time of the fire, but afterwards until the tenancy was put an end to. Izore v. Gorton &c. 5 Bingh. N. C. 501; 35 Eng. Com. Law Rep. 198.