The opinion of the court was delivered by
Isham, J.
This action is brought to recover damages for the breach of covenants contained in a lease. The lease was executed on the 23d of February, 1852, and was to continue so long as the rents were paid, and the covenants therein contained were performed. Breaches are assigned, in .the declaration, of the various covenants contained in the lease, and upon the performance of which issue was joined.
The facts stated in the case show a breach of some, at least, of these covenants; that is, the rent was not paid for the first year, when due, nor until after the commencement of this suit; nor was the given quantity of wall made during that period, as the defendant had covenanted, nor until after the suit was commenced. The plaintiff was, therefore, entitled, in any event, to recover nominal damages. The county court ruled that nominal damages, only, could be recovered. The plaintiff insists upon actual damages, and upon having those damages assessed by a jury. In relation to the covenant for the payment of rent, and for building wall we see no error in the ruling of the court. This suit having been commenced immediately after the termination of the first year, and those covenants having been subsequently performed, the damages are necessarily merely nominal.
The more important questions arise upon the covenants to carry on the farm in a good husband-like manner, “ and to maintain the buildings, and everything thereto belonging,” which appear to have *532been much out of repair. It is insisted that the plaintiff can recover nominal damages only, on those covenants, as this action was commenced while the lessee was in possession, and before the termination of the lease; and that there is no breach of the covenants, on which an action can be sustained, if the covenants are performed before the interest of the lessee in the lease has terminated, and before the premises have passed into the hands of the plaintiff, as lessor. It is not necessary to decide to what extent the lessee is bound to repair, under the words “ maintain the buildings,” — whether he was obliged to keep the premises only wind and water tight, as was observed by Patterson, J., and as the rule was applied to a tenant from year to year, Leach v. Thomas, 7 Car. & P, 327; Auworth v. Johnson, 5 Car. & P. 239, or to keep the premises in the state or condition in which they were at the time of the demise, Gutteridge v. Munyard, 7 Car. & P. 129, — or whether he is liable only for injuries arising from voluntary negligence, Woodf. Land & Tent. 398. Whatever the character and extent of that obligation may be, we have no doubt that the covenant, in relation to the occupancy of the land, and maintaining the buildings, is as continual and perpetual as the duration of the lease. The lessee is bound, at all times, to the performance of those covenants, and for any neglect, the plaintiff can sustain his action, though there has been no termination of the lease. This point was directly decided in the case of Luxmore v. Robson, 1 B. & Aid. 584, and Schieffelin v. Carpenter, 15 Wend. 400; Sedgw. on Dam. 388. The reason and propriety of this rule is apparent. The plaintiff, as lessor, has a right to insist that the buildings, at all times, be maintained, and the land managed according to good husbandry, as a matter of security for the performance of other covenants in the lease. The plaintiff, under these covenants, was entitled to recover his actual , damages, or such damages as will put and keep the premises in that state and condition which is provided for by those covenants. The ruling of the county court, in directing the jury to find nominal damages only, was, we think, incorrect. The plaintiff was entitled to his actual damages, and to have those damages assessed by the jury-
The judgment of the county court is reversed, and the case remanded.