33 N.J.L. 240 | N.J. | 1869
This is a suit by the lessee against the assignee of the reversion, and the controverted
From an attentive consideration of this lease, I think the covenants sued on must be distributed into two classes, differing in important respects. The words used are these: “ The said Cadwallader Sellers agrees to give said house one coat of paint inside and out, to repair and cleanse the walls inside, and also during the term of lease, to repair the water pipes and water closets, walls, and do all other necessary repairs, to make the property in a good and tenantable condition.”
Now it seems to me clear that all these repairs do not stand in the same range; there is a plain, mark of distinction upon them, viz., they are to be done at different times. To the doing of the first class, that is, the painting and repairing and cleansing the walls inside, no time is annexed; but the others are additional, and are to be done “during the term of lease.” Nor is there anything surprising in this feature of this agreement, for it is obvious that the acts to be done, and which are comprised in what I have denominated the first class of these covenants, are such as naturally and usually accompany the entrance of the tenant upon leased property. The giving the house one coat of paint, and the reparation and cleansing of the walls inside were acts preparatory to the occupation by the lessee; the residue of the repairs were to be done at some subsequent period during the currency of the five years of the tenancy. These two classes of covenants are subject, in their connection with-
To begin, then, with the first class — those which constituted the landlord’s preparation for the occupation of the tenant. With regard to these, it has already been said, no time for performance was fixed. Consequently, by force of the ordinary legal rule, these repairs were to be done in a reasonable time. The lease was dated on the 19th March, 1864, and the term commenced the following April. It was over two years before Sellers, the lessor, conveyed the premises (o the defendants. There can be no question, therefore, that ibis covenant was broken before the reversion came to the defendants. The point is, will this suit, for this breach, lie against them ?
The rule of law upon this subject may be thus generalized from the authorities, viz., that where a covenant touching the demised premises requires the performance of a single act, or a series of cotemporaneous acts, and not the performance of acts at different times, such covenant will not run with the laud after breach. The distinction is between such covenants as are entire, and such as are of -a continuing nature. Thus-a covenant to pay rent at a given time, belongs to the former category; a covenant to do repairs from time to time, upon notice, is to be classed in the latter. The only practical difficulty is, to discriminate, in all cases, the one class from the other. The general rule, that subsequent to a breach a covenant will not run with the land, seems completely established. A leading case is that of Grescot v. Green, 1 Salk. 199, in which a lessee covenanted for himself and his assigns to rebuild and finish a house within such a time, and after that time he assigned, the house not being built and finished; and, Holt, Chief Justice, said : “ 'I his covenant shall not bind the assignee; because it was broken before the assignment; aliter if broken after; as if the lessee bad assigned before the time expired.” The doctrine of this case is approved of, and followed by Lord Mansfield
It will be perceived that the case, above cited, decided by Lord Holt, is closely analogous to the present. The only difference being that, in the former, the acts of reparation were to be done within a fixed period. But this circumstance is immaterial with respect to the legal principle involved. In the case before us the covenant under consideration was as plainly broken before the title came to the defendants as it would have been if its performance had been required to be in a mouth from the date of the lease. After the lapse of two years no question of this kind can be mooted. The precedent, therefore, of Grescot v. Green, is strictly applicable. And with regard to the entirety and completeness of a breach of a covenant of this character, the case of Stuyvesant v. The Mayor, &c., of New York, 11 Paige 414, may be profitably referred to: There the city of New York covenanted to inclose and improve lauds granted to the corporation, and Chancellor Walworth held that this was not a continuing covenant, but one to be performed within a reasonable time, and when once broken was entirely broken.
From these determinations the plain result would seem to be that the covenant in the present instance has no quality which gives it continuance after a breach, and that when once broken, it could not go as a liability attending the land into the hands of the defendants. The remedy of the plaintiffs for a breach of the covenants of this first class was againt Sellers, the covenantor, and not against his assignees. The plaintiffs’ case, therefore, fails as to this first ground.
Second. The remaining covenants embraced in this suit are comprised in this clause of the lease: “And also during the term of lease to repair the water pipes and water closets,
As to the other objection which was taken in the brief of counsel,- that it is not alleged that any request was made of the defendants to do the repairs in question, the conclusive answer is, that this imperfection cannot be taken advantage of on general demurrer. Unquestionably, this declaration is defective in this particular, in point of form. A notice to perform the covenant in question, it has been already stated, is regarded as a condition precedent to a right of action, and such notice should therefore be formally stated, with time and place. Instead of this, we have here but the common
On the whole case, therefore, my conclusion is that the defendants are entitled to judgment on this demurrer.
Dalrimple and Depue, Justices, concurred.