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termine what things concern the land, and it is not always easy to decide. The decisions are not entirely in harmony, and the discussion of this topic may as well be closed by saying that it has generally been held that the following and the like covenants run with the land and the reversion: covenants to repair, to renew the lease, to renew perpetually, for quiet enjoyment, not to assign, not to sublet, to return the land as well stocked as at the beginning of the lease, not to commit waste, not to carry on a certain dangerous trade, to insure, to build a mill suitable to mill the ores from the lessor's adjoining land, to pay taxes, to pay rent, or to purchase improvements to be made by the tenant. An agreement not to exercise a trade in competition with the lessor has been held not to run to bind the assignee. The lessor may secure the same result from even a covenant that will not run with the land, by inserting in the lease a condition or covenant against assigning without the written consent of the lessor, which, if ever needed, may be given on the like terms so as to avoid the rules that a condition once waived is
36. Power to assign, sublet, mortgage, etc. In the absence of restraint by statute or provision in the lease, a lessee may assign, sublet, or otherwise dispose of his term and interest, without any assent by the lessor, or against his objection; and his assignee, sublessee, or mortgagee, may likewise, in the absence of such restrictions, assign, sublet, or mortgage the whole or any part of his interest. But of course none of these transactions give the assignees or subtenants rights against the lessor superior to those held by the tenant, nor bind the reversion further than it is bound by the terms of the lease. There are statutes in a few of the states forbidding transfers by tenants without the consent of the lessor: in Kentucky, Missouri, and Kansas, if the lease does not exceed two years; in Georgia, if it does not exceed five years; in Texas, irrespective of the length of the term. The Missouri statute is held not to prevent subleases ; the contrary is held in Texas. If a transfer is made in violation of the statute the landlord may have the assignee or subtenant enjoined from trespassing on the land, or may waive the objection and hold him and his goods in action or distress for the rent (2).
§ 37. Attornment is the act of the lessee or tenant, in recognizing the grantee of the reversion as his landlord, and may be by express words or by such implication as payment of rent to him. At common law, attornment was essential to enable the grantee of the reversion to sue for the rent; but this difficulty was evaded by making a transfer by fine, or later by a conveyance operating under the statute of uses, 27 Hen. VIII, c. 10, and finally the necessity for attornment was abolished by statute, 4 Anne, c. 16 (1705). In this country some courts have held that attornment is not necessary; in some the statute is given effect by a sort of equity though it was enacted since the settlement of this country; and in some states it has in effect been re-enacted, so that now attornment is not necessary to a complete grant of the re
(2) Forrest v. Durnell, 86 Tex. 647; Moore v. Guardian Trust Co., 173 Mo. 218.
version in most of the states. If there is a sublease instead of an assignment (§ 6, above), neither the lessor nor his heirs, assigns, or grantees can maintain any action on the covenants of the tenant's subtenants to pay him rent. They are the tenants of the tenant, and he is entitled to the rent they are bound to pay. If the first tenant dies, his representatives may sue for the rent; and if the first tenant assigns the reversion of his term the rents of the subtenant are incident to the term and pass with it.
8 38. Assignment, sublease, and mortgage distinguished. An assignment of a tenant's term is a transfer of his entire interest. If he parts with his whole interest in the whole property, that is an assignment of the whole; if he parts with his whole interest in a part of the property leased, that is an assignment as to so much. If he rents parts of it to different persons for his whole term, then such persons, to the extent of their holdings, are assignees. If the new tenant takes the land for a shorter time than the lessee has he is a subtenant and not an assignee; he is a tenant of the lessee, not of the lessor.
In an action of ejectment by the lessor to recover possession because of an alleged subletting without his consent in writing, contrary to the terms of the lease, the court said: “The first question is, did the lessees sublet the premises without the written consent of the lessor. They executed an instrument to Bower, by which they gave him the right in the premises for two years and seven months, and a privilege for four years longer by his giving two months' notice. The defendant contends that this is not a sublease, but that it is an assignment of the lease to them, or of their term. It is said that when a lessee conveys his whole estate to an alienee, the conveyance amounts to and is called an assignment; and that the distinction between an assignment and a lease depends solely upon the quantity of interest which passes, and not upon the extent of the premises transferred. An assignment creates no new estate, but transfers an existing estate into new hands; an under-lease creates a perfectly new estate.
“In this case, these general principles will not entirely satisfy, and we must learn how they have been applied in particular instances. We find that though a lessee make an instrument, which by its terms conveys the whole of his interest in the premises, if he reserve to himself a reversion of some portion of the term, it is an under-lease, and not an assignment. It has accordingly been held, that though the instrument dispose of the whole unexpired term, if it contain a covenant to surrender the premises on the last day of the term it is an under-lease and not an assignment. And again, if there be a right reserved to the lessor to re-enter on breach of conditions, this makes a sublease. So it has been held that a reservation of a new rent makes the instrument a sublease. Undoubtedly the chief of these is the reversion of some portion of the term. Therefore though the instrument executed to Bower does, in the term of two years and seven months demised and in the privilege for the further term of four years, cover the whole unexpired term demised by the plaintiff to the Bronners; yet it is a sublease and not an assignment. It is in the form of a lease; it reserves to the Bronners rent at a new rate and at a new time of payment; it stipulates for a right of re-entry on nonpayment of rent, and on the breach of certain conditions contained in it; it provides for a surrender of the premises to them on the expiration of the term. Thus the Bronners did not part with their whole interest in the premises and in the lease thereof to them” (3).
Thus it appears that an assignment is a transfer of the lessee's term; and a subtenant is one who leases all or part of the rented premises of the lessee in such a way as to leave a reversionary interest in the original lessee, and this is most surely done by a lease for a less term than the lessee had. A mere permissive use of the land which amounts to nothing more than a license is not a breach of a stipulation against subletting, nor is such a provision broken by the lessee putting his servant or agent in possession and charge of the premises. The substance of the transaction and not the form of the paper determines the question as to its character. A transfer in the form of an assignment is a mortgage if it was in fact made, not to pass the estate, but to secure payment to the transferee of a debt due him from the lessee, to whom a re-transfer is to be made upon payment.
§ 39. Restrictions upon transfer: Strictly construed. Restrictions upon transfers by lessees in fee simple are void on grounds of public policy, as tending to create perpetuities; but restraints on transfers by tenants for
(3) Collins v. Hasbrouck, 56 N. Y. 157.