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life or years are not open to that objection. All restraints upon alienation are, however, construed strictly. A condition or covenant against assigning is not violated by subletting; a stipulation against subletting is not broken by assigning; a stipulation that the lessee shall not assign is not violated by the bankruptcy of the lessee; nor by an assignment by his administrator or executor; nor by a sale on execution against him; nor even, one court has held, by his giving a mortgage on it and allowing the mortgage to be foreclosed. A stipulation that neither he nor his representative shall assign to a person named is not violated by his assignee or subtenant assigning to such person.
$ 40. Same: Provisions for forfeiture. A provision in the lease for an entry and forfeiture of the lease in case of violation of the restraint on assignment and subletting is of the highest importance to the lessor. A mere provision in the lease that the lessee shall not assign is only a covenant at best, for the breach of which the lessor would have an action against the lessee, and in most cases would be able to recover only nominal damages. Such a covenant would not render the assignment void, nor in any way restrict the estate acquired by the assignee, except that it would prevent him acquiring the right to sue the lessor on such covenants in the original lease as would, but for the covenant not to assign, accrue to his benefit, such as covenants running with the land. But a provision amounting to a condition, for the breach of which the lessor may enter and forfeit the term, is a real restraint, which in ordinary cases will prevent any attempt at violation, and, in the exceptional case in which there is a violation, will afford the lessor real redress.
And yet conditions are construed even more strictly than covenants when they restrain alienation, for the very reason that they cause a forfeiture in addition to the fact that they restrain trade and commerce. All that has been said of the strict construction of covenants against alienation applies with added force to such conditions. An assignment in violation of the condition is waived and confirmed by the lessor accepting rent from the assignee with knowledge of the assignment, and the lessor cannot thereafter claim a forfeiture for breach of that condition; but he may still sue the lessee for breach of his covenant. Such conditions are also generally held to be indivisible; and if one assignment is permitted or waived the condition is gone forever. Where a lease is made to three, subject to the condition to be void if an assignment is made without the consent of the lessor, and the lessor later consents to an assignment by one of his interest, the others may afterwards assign without his consent, and he can claim no forfeiture for it.
§ 41. Same: Effect against assignees. If one covenants for himself and his assigns not to assign, an action may be maintained against the lessee's assignee for breach of the covenant, for it is one that runs with the land and the reversion. In one case the court said: “The alleged assignment was without the assent of the lessor. The lease contained a provision prohibiting the assignment without the written assent of the lessor; but it is urged that the condition was wholly discharged by the leave given to McCabe to assign the lease to the appellant, and that the covenant against assignment without written consent became exhausted by one consent to assign.
The assent declared that the assignment should be subject to each and every covenant, condition, and provision of the lease, and expressly provided that no further assignment ‘of the said lease shall be made without written consent;' and the law has no arbitrary rule that, under an assent so conditioned, the assignee who has accepted such assent, and enters into possession thereunder, is discharged from the condition of the lease and the assent, and may assign the lease at will” (4).
§ 42. Effect of assignment: Between lessor and lessee. The lessee is as liable to the lessor on the covenants of his lease for rent accrued and to accrue, and on the other covenants, after as before the assignment. Upon covenants implied merely from the relation of tenancy and not expressly set forth in the lease he is no longer liable. In a celebrated old English case (5), in an action by the lessor against the lessee for rent accrued after the assignment the defendant claimed that by the assignment he was relieved of liability for future rent. But on great deliberation and conference between all the judges, it was held that by the assignment the lessee was not released from the obligations of his contract; and the court held that there are three kinds of privity by which men may be bound to pay, viz.: privity of contract, privity of estate, and privity of contract and estate combined.
(4) Springer v. Chicago Real Estate L. & T. Co., 202 Ill. 17. (5) Walker's Case, 3 Coke, 22a.
“Privity of contract only is personal privity, and extends only to the person of the lessor and to the person of the lessee, as in the case at bar when the lessee assigned over his interest; notwithstanding his assignment the privity of contract remained between them, though the privity of estate be removed by the act of the lessee himself. And the reason thereof is: first, because the lessee himself shall not prevent by his own act such remedy which the lessor has against him by his own contract; but when the lessor grants over his reversion, there, against his own grant, he cannot have remedy, because he has granted the reversion to another, to which the rent is incident. Secondly, the lessee may grant the term to a poor man, who shall not be able to manure the land, and who will for need or for malice suffer the land to lie fresh, and then the lessor will be without remedy either by distress or by action of debt, which would be inconvenient. Privity of estate only: as if the lessor grants over his reversion or if the reversion escheat, between the grantee (or the lord by escheat) and the lessee is privity of estate only; so between the lessor and the assignee of the lessee, for no contract is made between them. The privity of contract and estate together is between the lessor and the lessee himself [before assignment of the lease].
If after the assignment of the lease the lessor grants over his reversion, the grantee shall not have an action of debt against the lessee, for the privity of contract as to the action of debt holds only betwixt the lessor himself and the lessee himself; so in such case if the lessee dies, the lessor shall not have an action of debt against his executors, for the privity consists only between the lessor and the lessee.”
$ 43. Same: Between lessor and assignee. An assignee is liable to the lessor and his grantee by virtue of his privity of estate, on all the covenants that run with the land, and for all breaches occurring while he has the estate, such as the covenant to pay rent, make repairs, or cultivate the premises in a particular manner; but he is not liable for any breaches of these covenants which occurred before he acquired the premises or after he disposed of them. By again assigning he does not avoid liability for breaches while he held. In an action against an assignee of a lease for rent, he defended that he had assigned before the rent accrued. The original lease contained a covenant not to assign without the consent of the lessor; when the defendant took the assignment the consent of the lessor was given on condition that the assignee should not assign without the lessor's consent, to which the defendant assented. The court said: “It is well settled that by virtue of the privity of estate between the assignee of the leasehold and the lessor, such assignee becomes personally liable to the lessor while he holds the estate as assignee, for the performance of the lessee's covenants which run with the estate.
By accepting the assignment of the lease, and the written assent of the lessor, Harding, in virtue whereof the assignment became effective, and entering into possession of the premises thereunder, it must be held the appellant held possession as assignee under the terms and conditions of such assignment and written assent, and that he