Jackson ex rel. Stevens v. Silvernail — 15 Johns. 278

Majority

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Jackson, ex dem. Stevens and others, against Silvernail.

Headnote

Where a lessee for lives covenanted not “ to sell, dispose of, i or assign his estate in the demised premises, "without the permission of the lessor, &c. and the lease contained a clause of forferture for the non-perform-once of covenants, it was held, that a lease of part ef the premises by the lessee for 20 years, was not such a breach of the covenant as would work a forfeiture; and that nothing short of an assignment ofhis whole estate by the lessee would produce a forfeiture of the lease. IN or would a sale of the whole premises under a judgment and execution against the lessee work a forfeiture, there being no evidence of any fraud or collusion on the part of the lessee.

THIS was an action of ejectment, for a farm in the manor of Livingston, and was tried at the Columbia circuit, where a verdict was taken for the plaintiff for part of the farm claimed, subject to the opinion of the court, on a case containing the following facts: Robert Livingston, the proprietor of the manor, on the 15th of May, 1784, executed a lease to Johannes Drom and his wife, for their joint lives, for the farm in question, containing 150 acres. It was, among others things, covenanted, that if the parties of the second part, or the survivor of them, should be minded “ to sell and dispose of, or assign their estate in the demised premises,” it should be lawful for them, or the survivor of them, so to do, provided they first obtained permission in writing under the hand and seal of the lessor, or his heirs or assigns, and not otherwise, &c. The lease contained a proviso, making it void, in case all and every the articles, covenants, and agreements therein contained on the parts of the lessees were not observed and performed.

On the 8th of March, 1815, John Drom executed a lease under seal to David R. Waldo and David Dakin, for the consideration of 644 dollars, by which he “ demised, leased, and to farm let,” for twenty years, 32 acres and 32 perches of land, part of the farm so leased to him. It appeared also, that the farm so leased was bid off by Stephen Miller at a sheriff’s sale on a judgment and execution against John Drom, at the suit of Miller, for the consideration of 1010 dollars, the amount of the judgment being 1478 dollars of debt, and 16 dollars and 62 cents costs.

The plaintiff proved that the sheriff’s sale was after the death of Drom, on a fieri fiadas, issued before his death; that Stephen Miller, being the highest bidder at that sale, did not take a deed to himself, but by a subsequent arrangement with the administrators of Drom, and with the defendant, it was agreed that the defendant should take the deed from the

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sheriff, upon the bid of Miller, and pay Miller his debt, and the balance, making 1500 dollars in all, he should pay to the administrators of Drom; and the sheriff accordingly executed a deed to the defendant, who is in possession of the premises ; the Widow of Drom, for whose life, also, the lease was to endure, being still alive.

It was proved that the defendant admitted that he was in possession of about 18 acres of land, not included in the lease to Drom, and by the advice of the judge, a verdict was found for the plaintiff for 18 acres, 2 roods and 24 perches, absolutely, but subject to the opinion of the Court as to the residue of the premises.

The cause was submitted to the court without argument.

delivered the opinion of the court. The plaintiff proved title under Robert Livingston. As to 18 acres 2 roods and 24 perches, part of the land in possession of defendant, the plaintiff’s right to recover is undisputed, and as to the residue, a verdict for the plaintiff was taken, subject to the opinion of the court upon the facts stated in the case.

The only question is, whether a forfeiture has been incurred, or whether the covenant,,-on the part of the lessee, not “ to sell and dispose of, or assign his estate in the said de* mised premiseshas been violated ?

The plaintiff’s claim is stricti juris; and to entitle him to recover, on the ground of forfeiture, he must bring his case within the penalty, on the most literal and rigid interpretation of the covenant.

In the case of Crusoe, ex dem. Blencowe, v. Rugby (3 Wils. 234) the lessee, in a lease for 21 years, covenanted not “ to assign, transfer, or set over, or otherwise do or pul away the premises, or any part thereof,” without permission ; and then made a lease to a stranger, for 14 years, of the same premises, and it was held no breach of the covenant, on the ground that the demise for 14 years, was an under-lease, and not an assignment. (Harg. Co. Litt. 308. a. Strange, 405.)

In the case of Roe, ex dem. Gregson, v. Harrison, (2 Term Rep. 425.) the lessee covenanted that neither he nor his administrators, would “ set, let, or assign over, the demised premises, or any part thereof, without permission, &c. and authorized the lessor to re-enter for any breach of covc?:an

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The administrator of the lessee made an under lease of the premises, for less than the original term, without license ; and the court sustained an ejectment for the forfeiture, on the ground that by the literal and necessary construction of the covenant, the lessee was restrained, not only from assigning, but also from sub-letlmg : the words “ sef and “ ZeZ” being synonymous with the word demise.

In the case now before us, the covenant is, that the lessee for lives would not “jell and dispose of, or assign his estate in the demised premisesand he executed a lease of part of' the premises for the term of 20 years.

Applying the principles of the adjudged cases, it is clear, that Drom did not, in this case, violate his covenant, by giving the lease for 20 years: Nothing short of an assignment of his whole estate in the land could work a forfeiture. Drom conveyed only a lesser estate for term of years, out of his larger estate for life; which was plainly a mere sub-letting, and not a “ selling and, disposing of, or assigning his estate in the premises. ” The words “ sell and dispose off as clearly refer to the “ estate,” as the word “ assign.” It is a covenant by Drom not to “ sell and dispose of” his estate, nor to “ assign” his estate; and he has done • neither, by giving the lease for a term of years.

In regard to the sale under the judgment and fieri facias, it is well settled that such a sale does not work a forfeiture; unless it appear that the proceedings were voluntary and collusive on the part of the tenant, with a view to defraud his landlord of his rights. (Doe, ex dem. Mitchinson, v. Carter, 8 Term Rep. 57. Jackson v. Corliss, 7 Johns. Rep. 531 .) There is no evidence of any such fraud in this case.

The transfer of Millers bid at the sheriffs sale, and the arrangement between the defendant and the administrators of Drom, was perfectly reconcilable with good faith, and worked no prejudice to the rights of the landlord.'

The plaintiff is, therefore, entitled to recover no moro than the 18 acres, 2 roods, and 24 perches, to which his title was admitted at the trial; that part of the defendant’s possession not being covered by the lease to Drom.

Judgment for the plaintiff accordingly.

END OF MAY TERM.

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CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW-YORK. IN AUGUST TERM, 1818, IN THE FORTY-THIRD YEAR OF OUR INDEPENDENCE.