Livingston v. Stickles, 8 Paige Ch. 398

Livingston v. Stickles

8 Paige Ch. 398 | New York Court of Chancery | 1840

The Chancellor.

The objection that the lease contains no covenant on the part of the lessee or his assigns to pay the tenth sale, so as to render them personally liable upon an alienation of the premises, with the consent of the lessor, does not appear to be well taken. If it were a mere condition, then it is evident the only remedy of the lessor would be by a proceeding against the purchaser, to recover the premises for a breach of the condition. But a clause of this kind may be so framed as to operate both as a covenant and as a condition ; so as to give the lessor an election, either to proceed by an action of covenant, to recover damages for a breach thereof, or by an ejectment to enforce the forfeiture. No particular form of words is ne*403cessary to create a covenant. But any words will be effectual for thatpurpose, which show that the party sought to be charged as a covenantor intended to agree to do, or to refrain from doing, something in which the other party had an interest. In Harrington v. Wise, (Cro. Eliz. 486,) where the agreement was, "it is covenanted and agreed between the parties, that J. H. doth let the said lands for five years, provided, always, that the said W. shall pay to him annually during the term £120 the court decided that this was a covenant for the payment of the rent, as well as a condition. (See also Doe v. Watt, 8 Barn. & Cress. Rep. 316; Coventry’s Read. ed. of Coke, 203.) Here, in addition to the clause of the lease which the appellant’s counsel contends is a condition merely, the parties had inserted a previous covenant, on the part of the lessee and his assigns, well and faithfully to pay, fulfil, accomplish, and perform, not only the yearly rents therein before mentioned and reserved, but also "all and every the several and respective payments, covenants, clauses, and conditions following,” &c. among which payments and conditions was this payment of the tenth sale upon every alienation. This is an express covenant, therefore, even if the subsequent clause, taken by itself, would have operated as a condition merely.

The objection that the complainant’s remedy, if any, was at law, and not in this court, appears, however, to be well taken. The bill states expressly that after these contracts for the sale of the premises, the defendant promised the complainant to pay her the tenth sale. And the evidence of Mr. Morris is, that she proved on the trial at law, in the suit brought for the recovery of the tenth sale, that the defendant had promised to pay the same. If the defendant therefore was either legally or equitably liable for the payment of the tenth of the purchase money for which he had agreed to sell the premises, it was a good consideration for this express promise to pay. And the complainant, instead of coming into this court, should have applied to the supreme *404court to set aside the nonsuit which the circuit judge had erroneously granted.

Whether the defendant was equitably bound to pay this tenth sale upon a mere contract to sell, and before he had actually received all the purchase money, is a question not necessary to be considered here, as I am satisfied this is not a case in which this court ought to give relief, if the defendant is not legally liable upon the covenant. It is a condition in restraint of alienation, which courts of law always construe with great strictness against the lessor. It is in effect a fine upon alienation, similar to that which existed under the military tenures, and which were abolished in England upon the restoration of Charles 2d; or to the lods et ventes of the French feudal tenures. And although these covenants and conditions, in restraint of the alienation of leasehold property have been sustained by the courts, while they have been considered as absolutely void in conveyances in fee, there is no principle which requires a court of equity to sustain them any further than the landlord has secured the legal right by the terms of his contract. The question has been mooted in France, whether the lods et ventes is payable upon a mere agreement to sell; and the better opinion appears to be, that it is payable where there has been a real sale of the premises, although the conveyance has not been executed before a notary, so as to give a perfect title to the purchaser ; but that it is not payable upon a mere agreement to sell. (See 10 Guyot’s Repert. of Jurisp. 603, art. Lods et Ventes, § 4.) But as there is no distinction between legal and equitable remedies recognized in the French courts, the question whether a court of equity should go beyond the strict rules of law in enforcing the claims of the landlord in such a case could not arise there. In the present case, the defendant who has not in fact assigned his lease, so as to give to the complainant a remedy against the persons to whom he has contracted to sell, may still be liable to her upon the covenants running with the land, whenever he makes an actual assignment to the purchasers, pursuant to his contracts *405with them. But as he has covenanted with them to clear the premises from the tenth sale upon their purchases, if it is in truth an incumbrance on the title, and as he must also get the complainant’s consent to such alienation if it has not already been given, it is doubtful whether he has made contracts which can be enforced against the purchasers, either at law or in equity. And certainly if he has not made such contracts for the sale as could be enforced here without the consent of the complainant, there is good grounds for saying that there has not been an alienation of the premises in equity.

I prefer to put my decision in this case, however, distinctly upon the ground that these agreements in the nature of fines upon alienations, are inconsistent with the spirit of our free institutions, and injurious to the community. And although this court has no right to interfere with such contracts, so far as the laws of the state sanction their validity, it ought not to interpose its extraordinary jurisdiction, to enforce the rights of the landlord, in cases where he has not by his contract secured to himself a legal right; as contradistinguished from an equitable claim, to enforce a hard bargain for which the law gives him no right of action.

For these reasons the decree of the vice chancellor must be reversed. And the complainant’s bill must be dismissed with costs ; but without prejudice to her rights at law, if she has any, either for the recovery of the tenth sale, or to enforce a forfeiture of the lease.