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ises only for a residence for the lessee himself is not broken by his marrying and living there with his wife, children, and house servants; nor by selling at auction on the place the furniture that has been used there.

Covenants restricting the use of the premises run with the land and the reversion, so that they may be enforced by the grantee of the lessor and against the sublessee and the assignee of the lessee. The lessee may be held liable on his contract for a breach by himself or any claiming by assignment or lease under him, to the amount of the damages resulting therefrom, and a court of equity will restrain him and all others from threatened violations, and in the same suit award damages for past wrongs. If the provision is a condition instead of a covenant not to do the thing, the lessor may on that ground enter and terminate the lease as for a forfeiture.

33. Option to terminate, renew, or purchase. The mere fact of lease gives neither party the option to terminate, renew, or purchase; but such stipulations in leases are common. Whether the provision is merely optional with the one party, or a covenant enforcible by the other, is a question of construction determined by the rules before stated (§ 23). Whether it be an option or a covenant it runs with the land and the reversion. An option to purchase, renew, or terminate given to the tenant may be exercised by his assignee against the lessor or his grantee. Such an option reserved by the lessor may be exercised by his grantee against the lessee or his assignee. If the option is subject to conditions, these must be performed or tendered before performance by the other party is demandable. Such stipulations are not void for want of mutuality. The granting of the lease is sufficient consideration for the tenant's agreement that in case of sale by the landlord the lease may be terminated without notice. The acceptance of the lease by the tenant and his promise to pay rent furnish sufficient consideration for the lessor's promise that the tenant may terminate at a specified time or have a renewal on stated terms, or purchase at a stated price. Such provisions are not valid unless they specify the price to be paid for the conveyance, the property which is to be conveyed, and so forth. Where the time during which the option may be exercised is not specified it may be exercised at any time during the term and not afterwards. If the time is specified, the termination of the lease in the mean time by a conditional limitation does not necessarily terminate the option; but if the lessee forfeits his term the option falls with it (13). If the lease requires notice of the exercise of the option to be given, the notice should be given to the person then having the title affected by it. Covenants expressly for perpetual renewal are valid, but the courts do not favor them, and construe a covenant merely for renewal as a covenant to mean one renewal on the terms of the first lease.

(13) Ober v. Brooks, 162 Mass. 102.




§ 34. What covenants run with the land and reversion. In an English case which has always been regarded as a leading authority on this subject, Spencer leased land with a covenant that the lessee should build a wall on a certain part of it. The lessee assigned his term to J, and he assigned it to another, whom Spencer sued for not building the wall within the time limited. The action was held not maintainable, and in this case the judges laid down many rules as to when covenants run and when they do not, and among them the following:

1. When the covenant extends to a thing in esse [in being], parcel of the demise, the thing to be done by force of the covenant is quodammodo (as it were] annexed and appurtenant to the thing demised, and shall go with the land, and shall bind the assignee, though he be not bound by express words; but when the covenant extends to a thing which is not in being at the time of the demise made, it cannot be appurtenant or annexed to the thing which hath no being; as if the lessee covenants to repair the houses demised to him during the term, that is parcel of the contract and extends to the support of the thing demised, and therefore is quodammodo annexed appurtenant to houses and shall bind the assignee although he be not bound expressly by the covenant; but in the case at bar the covenant concerns a thing which was not in esse at the time of the demand made, but to be newly built after; and therefore shall bind the covenantor, his executors or administrators, and not the assignee, for the law will not annex the covenant to a thing which hath no being.

“2. It was resolved that in this case, if the lessee had covenanted for him and his assigns that they would make a new wall upon some part of the thing demised, that, forasmuch as it is to be done upon the land demised, it shall bind the assignee; for although the covenant doth extend to a thing to be newly made, yet it is to be made upon the thing demised, and the assignee is to take the benefit of it, and therefore shall bind the assignee by express words. So on the other side, if a warranty be made to one, his heirs and assigns by express words, the assignee shall take benefit of it. But although the covenant be for him and his assigns, yet if the thing to be done be merely collateral to the land, and doth not touch or concern the thing demised in any sort, there the assignee shall not be charged; as if the lessee covenants for him and his assigns to build a house upon the land of the lessor which is not parcel of the demise, or to pay any collateral sum to the lessor or to a stranger, it shall not bind the assignee, because it is merely collateral and in no manner touches or concerns the thing that was demised or that is assigned over; and therefore in such case the assignee of the thing demised cannot be charged with it no more than any other stranger.

“3. It was resolved, if a man leases sheep or other stock of cattle, or any other personal goods for any time, and the lessee covenants for him and his assigns at the end of the time to deliver the like cattle or goods as good as the things let were or such price for them; and the lessee assigns the sheep over, this covenant shall not bind the assignee, for it is but a personal contract, and wants such privity as is between the lessor and lessee and his assigns of the land in repect of the reversion. But in the case of a lease of personal goods there is not any privity, nor any reversion, but merely a thing in action in the personality, which cannot bind any but the covenantor, his executors and administrators, who represent him” (1).

$ 35. Same: Comment and illustrations. While the propositions thus stated in this old case have in the main been adhered to since, the importance of the insertion of the word assigns is not admitted by all courts; and it has been held in several cases that a covenant by a lessee to · build on the demised premises by such a time is as binding on his assignee, without insertion of the word assigns, as would be a covenant to keep in repair a building already on the land; and in substance it is not easy to see how there is a distinction between a covenant to improve land now in being by building on it, and a covenant to improve the same land by shingling or painting a house already on the land.

Regarding the rule that a covenant concerning the land shall run with the land, there is no exact criterion to de

(1) Spencer's Case, 5 Coke, 16a.

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