Donald v. Elliott

The plaintiff let his farm to the defendant for a term of five years; the lease, in addition to the usual covenant against waste, containing a covenant that no wood should be cut down by the tenant. It contained no provision against subletting or assigning. This lease was extended three times, namely, for three years, then for one year, and again for one year. The complaint is, in so many words, that the defendant, in violation of the covenants contained in the said lease, did negligently suffer waste to be committed upon the said land, in that he suffered certain specified trees to be cut down and carried away, three barn doors to be tom off, the barn floor to be torn up, and the chicken house to be

If the action must be considered one for waste, as the plaintiff’s counsel insists, I think the verdict must be set aside. The action could not be maintained under the common law, for the action for damages for waste did not lie at common law against a tenant for years. Blackstone says (2 Comm. 283) that, “in our ancient common law, * * * waste was not punishable in any tenant, save only in three persons,—guardian in chivalry, tenant in dower, and tenant by the curtesy,—and not in tenant for life or years. And the reason of the diversity was that the estate of the three former was created by the act of the law itself, which therefore gave a remedy against them; but tenant for life or for years came in by the demise and lease of the owner of the fee, and therefore he might have provided against the committing of waste by his lessee, and if he did not it was his own fault.”

In the three specified cases, the relation being created by the law, the owner of the fee had no covenant to sue upon, and was therefore remediless, except as the law gave him a right of action; whereas, in leaseholds, the lessor could put covenants in the lease, for the breach of which he would have right of action. It has been denied that the common-law rule was thus restricted. 2 Reeve, Eng. Law, 73, 184. But it is uniformly so stated by commentators. Co. Litt. 54; Bac. Abr. tit. “Waste,” H; Com. Dig. tit. “Waste”; 2 Bl. Comm. 283; 4 Kent, Comm. 79. But the statutes of Marl-bridge (52 Hen. III. c. 23) and of Gloucester (6 Edw. I. c. 5) extended the action to all tenancies for life and for years; the for; mer enacting that “farmers shall not make waste * * * without special license had by writing of covenant, making mention that they may do it; which thing if they do, and thereof be convicted, they shall yield full damage, and shall be punished by amerciament grievously”; and the latter enacting that “a man from henceforth shall have a writ of waste in the chancery against him that holdeth by law of England, or otherwise for term of life or for term of years, or a woman in dower. And he that shall be attainted of waste shall lose the thing that he has wasted, and, moreover, shall recompense thrice so much as the waste shall be taxed at.” The penalty of treble damages, first introduced by this statute of Gloucester, survives with us. All tenants for life and for years, under tenancies created by lease or other act of the owner, being thus made liable to the action for waste, the same as tenants by act or operation of law, we need to inquire whether the right of action continued against them after assignment of the leasehold, for the waste of the assignee. The rule was that if tenants by the curtesy

■ That the rule was as above stated, in respect of tenancies for years and for life created by act of the owner, appears conclusively from the later statute (11 Hen. VI. c. 5) against the abuse of such tenants letting and granting their estates nominally in order to escape liability for waste. That statute, “because that * * the said tenants have oftentimes let and granted their estates * * * to many persons to the intent that they, in the reversion, that is to say their lessors, their heirs or their assigns, might not have knowledge of their names, and after the said first tenants continually occupy the said lands and tenements, and thereof take the profits to their proper use, and in the said lands and tenements commit waste and destruction, to the disinheritance of them in the reversion,” provided that they in the reversion, in such case, might maintain the writ of waste against such tenants, as though such nominal grant and lease by them had not been made. If the action lay against the first tenant in every case, notwithstanding an assignment by him of his term, there was no need for this statute against sham or colorable assignments. This same provision, with the provisions of the two earlier English statutes cited, may be traced through the statutes of this state (Laws N. Y. 1787, c. 6; 1 Rev. Laws, p. 62; 2 Rev. St 334) down to their latest enactment in our Code of Practice, where one might well be least likely to look for provisions of substantive law (Code Civ. Proc. §§ 1651-1650). These provisions of the Code are the gist of the three English statutes, and their lineal successors in this state against waste, and of the rules thereunder, which have been cited above. Section 1651 provides that “an action for waste lies against a tenant by the curtesy, in dower, for life or for years, or the assignee of such tenant, who during his estate or term, commits waste upon the real property held by him without a special and lawful written license so to do; or against such a tenant, who lets or grants his estate, and, still retaining possession thereof, commits waste with

It follows from the foregoing that the present action cannot be maintained as an action for waste, the waste having been committed, not by the defendant, but by his assignee of the remainder of the term. But the action may be upheld as one for damages for breach of the covenants of the lease, namely, the general covenant against waste, and the special one that no wood should be cut down. The defendant could not relieve himself of these covenants by transferring the leasehold. Bac. Abr. tit. “Covenant,” E; Walton v. Cronly, 14 Wend. 64 ; House v. Burr, 24 Barb. 525 . The motions for treble damages, and to set aside the verdict, are therefore each denied.