84 W. Va. 600 | W. Va. | 1919
. The judgment now under review is one for the plaintiff in an action of unlawful detainer, commenced in a justice’s - .
The plaintiff having acquired the title to the premises in question, within the term prescribed by a lease thereof executed by his grantor, two years, commencing March 1, 1917, and while the lessee was in possession, on or about May 1, 1917, proceeds upon the theory of a forfeiture of the lease, occasioned by an assignment thereof by the lessee, executed, April 3, 1918. It contains a covenant not to sub-let the premises, without the written eonsppLt of the lessor, but no covenant not to assign. The claim is that the assignment constitutes a breach of the covenant against sub-letting.
The lessor was U. G. Young; the lessee Adleberg & Ber-man, Inc.; the purchaser of the property, M. B. Goldman; and the assignees of the lease, Daniel Feder and Company. The premises are described as the store at 25 Capitol Street, in the City of Charleston.
Failure of the plaintiff to disprove consent to the assignment, by his grantor, is relied upon by the defendant, as a defect in the case made by the evidence. Such consent given long after the grantor had parted with his title would have been unavailing. Such.a covenant is for the benefit of the lessor and his assigns. The former no longer has any interest in it, wherefore he clearly has no right to give assent to an assignment of the lease or a sub-letting of the premises.
. The vital question' in the case is whether the assignment constituted a breach of the covenant not to sub-let, and, as to it, there is some conflict in the authorities. That it does has been distinctly held in at least two cases. Greenaway v. Adams, 12 Ves. 395; Den v. Post, 25 N. J. L. 285. But the latter was overruled in Field v. Mills, 35 N. J. L. 254. It is claimed that Upton v. Hosmer, 70 N. H. 493, asserts this doctrine, and there are some expressions in the opinion that seem to countenance it, but the covenant not to sub-let was read in connection with other provisions of the lease, which, in the opinion of the court broadened its scope. In conclusion, the court said: ‘ ‘ The purpose of the restrictive
Against this meagerness of authority for the proposition, that an assignment is within the meaning of a covenant not. to sub-let, there stands a very considerable array of authority holding the contrary. Field v. Mills, 33 N. J. L. 254; Lynde v. Hough, 27 Barb. (N. Y.) 415; Tiffany, Land. & Ten. sec. 48; Taylor, Land. & Ten. sec. 403. Covenants against assign
In the argument submitted for the defendant in error, see.. 21 of ch. 72 of the Code, defining the scope and effect of a, covenant not to assign without leave, is invoked, but it clearly has no application. It does not define a covenant not to sub-let. It merely provides a short and convenient form of the common law covenant against assignments, or a substitute therefor; and all of its terms fall within the meaning of ‘! assignment,? ’ mot ‘ ‘ demise ” or “ sub-let. ’ ’ Though Kanawha-Gauley C. & C. Co. v. Sharp. 73 W. Va. 427, involved a lease containing a covenant not to sub-let, and an assignment seems to have been treated by the parties as a possible breach, a decision as to its effect can hardly be said to have been rendered, since the case turned upon an issue as to waiver, and the court did not enter upon any inquiry as-, to the interpretation and effect of the covenant.
Under the principles and conclusion stated, there was no breach of the covenant and the plaintiff was not entitled to recover. Hence, the. judgment must be reversed, the verdict set aside and the case remanded.
Reversed, verdict set aside, case remanded.