Benjamin Wheeler & another vs. William Earle.
A condition in a lease, that if the rent shall be in arrear, or if the lessee shall neg lect or fail to perform and observe any or either of his covenants therein, the lessor may, at any time while such neglect or default, continues, enter upon the premises and repossess the same as of his former estate, is applicable to a covenant, that the lessee shall not occupy the buildings, or in any manner suffer them to be occupied, for dwellings, or for any unlawful purpose. Such covenant runs with the land, and is binding upon the estate in the hands of sub-1 enants of the lessee, whose use of the same for an unlawful purpose will be a breach of the covenant, and work a forfeiture.
This was a writ of entry, tried before Wilde, J., for the recovery of land on Fulton and Richmond streets, in Boston. The tenant held the premises as the lessee of Benjamin Wheeler, deceased; and the demandants claimed to recover the same as the devisees of the lessor, by virtue of an entry on the premises, on the 16th of October, 1848, for an alleged breach, by the defendant, of one of the covenants, contained in an indenture of lease of the premises from said Wheeler deceased to him.
The covenant in question was expressed in the following terms: “ And the said Earle further covenants that he will not occupy, or in any manner suffer the buildings now on the premises, or which may hereafter be erected thereon, to be occupied, for dwelling-houses, or for any unlawful purpose whatever.”
The lease also contained the following clause of reentry, which preceded the covenant above mentioned:
“ Provided always, and these presents are on condition, that if the said rent shall be in arrears, or the said lessee, or his representatives or assigns, do or shall neglect or fail to perform and observe any or either of the covenants herein contained, which on his or their part are to be performed, then, in either of said cases, the lessor, or those having his estate in the premises lawfully, may immediately, or at any time hereafter while such neglect or default continues, and without further notice or demand, enter into and upon said premises, or any part thereof in the name of the whole, and repossess the same as of his former estate, and expel the said lessee, and those claiming under him, and remove his effects forcibly if necessary, without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant.”
On the 16th of October, 1848, the demandants entered on the premises, and gave the defendant notice that they had done so, because he had broken the covenant above mentioned, by using the premises for unlawful purposes.
It appeared, on the trial, that the defendant did not dwell on the premises, but occupied a portion thereof, in the rear of Richmond and Fulton streets, for his own business, which was that of a dealer in wood and hay ; and that he let the buildings situated on the remainder of the premises, and fronting on said streets, to certain tenants, who held and occupied the same under him. The demandants produced much evidence, that since the death of the lessor in June, 1848, these buildings had been used by the under-tenants, for the sale of spirituous liquors without license, and had also been kept by them in a disorderly manner, and at -times made use of for purposes of prostitution. But, after the demandants had called a large number of witnesses to this point, the judge interfered to stop the further examination of witnesses to the same point, and called on the tenant to state his defence.
The tenant thereupon denied, that the demandants’ evidence established such a use, as would constitute a breach of the covenant; and contended that if it did, the clause of reentry did not apply to a breach of this particular covenant; but, if it did so apply, it was still incumbent on the demand-ants to prove, that the tenant was aware that the tenements were used for such unlawful purposes. But the presiding judge ruled, that the evidence established such a use as constituted a breach of the covenant; that the clause of reentry gave the demandants a right to enter for a breach of the covenant in question; and that the tenant was presumed in law to know that the buildings were used for unlawful purposes, if they were in fact so used.
The tenant also contended, that it was incumbent upon fhe demandants, in order to entitle them to recover, to prove that the buildings were used for unlawful purposes, at the time of the entry for the breach of covenant. The demandants contended that this point was clearly established by the evidence which had been introduced; and, upon the tenant’s counsel being about to address the jury on this point, it was proposed by the demandants and agreed to by the tenant, that a verdict should be rendered for the demandants, and that if upon the evidence introduced, which was to be reported, the whole court should be of opinion, that the jury would not be warranted in finding a verdict against them on this point; or if the whole court should not sustain the rulings aforesaid; then the verdict should be set aside, and judgment rendered for the tenant; but, otherwise, judgment should be rendered on th'e verdict. indemnity; and that the said Woodman afterwards tendered and offered the demandant the principal sum of $ 6000, due on the mortgage, which the demandant also refused to receive.
C. G. Loring and E. D. Solder, for the tenant.
1. The clause for reentry does not apply. All forfeitures are to be construed strictly. Doe v. Godwin, 4 M. & S. 265; Doe v. Stevens, 3 B. & Ad. 299; Doe v. Marchetti, 1 B. & Ad. 715, 721; 2 Platt on Leases, 319; Smythe’s Land. & Ten. 145. Besides, this clause of reentry, from its terms, applies to affirmative only, and not to negative covenants. See Doe v. Stevens, 3 B. & Ad. 299; Dormay v. Borrodaile, 10 Beav. 335; S. C. 5 M. G. & S. 380; Platt on Cov. 20. And the location of the phrases shows that the condition was not intended to include the negative covenants.
2. If the buildings were used for an unlawful purpose by a sub-tenant without the knowledge of the lessee, the lessee cannot be said to “ suffer ” such unlawful occupation, within the meaning of the condition. The instruction given took the question of knowledge away from the jury, and made it a presumption of law, and in effect converted the covenant into a warranty. Such a rule would place a lessee in the absolute power of his sub-tenants.
E. Blake, for the demandants.
— Dewey, J. (majority)
Dewey, J.
Does the clause in this lease, authorizing a reentry by the lessor, to repossess himself of the premises, apply to the breach of the covenant, “ that the lessee will not occupy, or in any manner suffer the buildings now on the premises, or which may hereafter be erected thereon, to be occupied, for dwelling-houses, or for any unlawful purposes whatsoever ” ?
This, of course, depends upon the construction to be given to the indenture. The language is very broad; the lessee stipulates “ if he shall neglect or fail to perform and observe any or either of the covenants herein contained, which on his part are to be performed,” then the lessor may lawfully enter &c. Although the conditions upon which the lessee took his lease may be such as materially to affect the value of his leasehold interest, and subject it to the contingency of an early termination, yet, if such are its plain and obvious terms, the lessee must abide by the stipulations of the lease.
Several reported cases were cited by the counsel for the defendant, for the purpose of sustaining the position that the condition annexed to the lease of a right of reentry does not embrace the covenant hereinbefore recited. The cases of Doe v. Godwin, 4 M. & S. 265, and Doe v. Marchetti, 1 B. & Ad. 715, 721, are clearly distinguishable from the present. The case of Doe v. Stevens, 3 B. & Ad. 299, is more analogous. That was the case of a lease reserving a right of entry by the lessor, “ if the lessee shall do or cause to be done any act, matter, or thing, contrary to and in breach of the covenants of this lease,” and it was held by the court that the condition as to reentry did not apply to a breach of the covenant “ to repair,” the omission to repair not being an act done contrary to the provisions of the lease. This decision may be supported upon the principle of restricting forfeitures of leasehold interests to the precise letter of the condition; whether it be in accordance with its spirit may be more doubtful. It rests upon the principle that the right of reentry in that case was confined “ to acts and things done,” and not to cases of omissions to do certain things, contrary to the stipulations of the covenant by the lessee. On the other hand, the case of Doe v. Jepson, 3 B. & Ad. 402, seems very much to weaken the force of the decision in the case of Doe v. Stevens.
Upon looking at the terms of this lease, we perceive no ground for holding that the stipulations, set forth as the foundation- of the forfeiture, are not fairly within the condition of the reentry clause. We are satisfied that it is no objection that the covenant is a negative stipulation. Such covenant may be equally effectual to work a forfeiture. Doe v. Keeling, 1 M. & S. 95. It may have been very unwise to enter into such stipulations, making them a subject of forfeiture of the estate, but that consideration cannot affect the legal construction of the indenture. The court are of opinion, that the use of the premises “ for an unlawful purpose ” would authorize the lessor to reenter for a breach of the condition of the lease.
This restriction upon the manner of using the premises runs with the land, and is binding upon the estate in the hands of sub-tenants. They take only the title of the lessee, and with the like limitations and restrictions. Such use by a sub-tenant holding under the original lessee, for an unlawful purpose, would equally forfeit the estate. This principle seems very clear, and hence, in the treatises upon the relation of landlord and tenant, it is said that when an estate is held subject to forfeiture, for breaches of numerous covenants or stipulations, some of which may be likely to be violated, it is expedient always to take from a sub-lessee good security against all such violations of the various stipulations in the original lease, as may subject the original lessee to lose his whole estate. By creating sub-tenants, the original lessee puts them in possession of the premises, and being thus in under him, their acts, if in violation of the conditions of the lease, will cause a forfeiture.
In the view we have taken of this case, it is unnecessary to consider particularly, whether the ruling that the defendant was presumed in law to know that the buildings were used for unlawful purposes, if the fact was so, was entirely correct in the form stated. The legal consequence will be much the same, under the different forms in which I have stated the consequences of a violation of the lease by a sub-tenant of the lessee. But as the facts have never been passed upon by a jury, a new trial is ordered, and the case will go to a jury under instructions carrying out the legal principles above stated. The question of fact will be, whether the definid an'* by himself, or through his sub-tenants, has occupied the premises leased, or any part of them, “ for an unlawful purpose,” and also whether the lessor or those having his estate did make entry upon the premises, or upon any part thereof in the name of the whole, immediately after or while such default or misfeasance continued, for the purpose of regaining the possession thereof. If such facts are found in favor of the plaintiffs, they will be entitled to a judgment in their favor -
New trial granted.
