| Superior Court of New Hampshire | Dec 15, 1835
delivered the opinion of the court.
There is no doubt that a lease is assignable, whether the term assigns be inserted or not.
In this case, the lease in its terms runs merely to the lessee, and not to him and his assigns ; and in addition, there is a clause in the lease that the lessee is not to assign or underlet; but the lease does not expressly make it a condition of reentry or forfeiture, in case such an assignment should be made.
There are other parts of the contract, however, which are technically conditions, and which operate, at the election of the lessor, as a forfeiture of the lease. Thus, it is provided that the lessor may enter and expel the lessee if he shall fail to pay the rent and taxes, or if he shall make any strip, or waste ; but the lease does not give such a right of reentry in case of assignment.
This omission seems to be hardly consistent with the idea that an assignment of the lease was designed by the parties to give a right of forfeiture or to furnish a cause for reentry ; the more natural construction of the terms of the lease would be that it was designed to furnish an independent claim, for damage arising from such assignment, rather than to make it the occasion of the forfeiture of the lease. Thus
These authorities go the point that a covenant not to assign is not necessarily a condition a breach of which would incur a forfeiture; and if there is any case where such a clause has not this effect, the clause in this lease would seem to afford an instance of this kind as other causes of reentry and forfeiture are specified, and this is omitted.
A breach in the condition of a deed will not, ipso facto, defeat the estate, but will only give power to the grantor, his heirs or assigns, to reenter, and by such reentry to avoid the estate. Comyn’s Land. and Ten. 104, (6 Law Library 59) Co. Lit. 214 b.; 32 Hen. 8, Chap. 34; 4 Kent's Com. 126.
If the lease still subsisted in force after the assignment, subject only to be defeated on reentry, it would furnish a sufficient consideration for the note in suit. It would, at all events, be a valid assignment against Spear. The assignment by the lessee would be a perfect bar against him; so that whatever might be the effect of the assignment against Durant, the original lessor, we have no doubt that the lessee, Spear, parted with a valuable interest; at least he parted with all his claim to the premises, which is a sufficient consideration for thé note in suit.
It seems to have operated as a valuable consideration in this case, in another respect, as the defendant was thereby enabled to close a contract with Durant which he could not have done, unless he had thus purchased, or procured the assent of Spear; but this is immaterial, if the other view is correct.
We find no authorities contradicting the view we have taken, as to the effect of this assignment; and the authori
Judgment for the plaintiff.