Doe, on the demise of Mitchinson, against Carter

JurisdictionEngland & Wales
Judgment Date23 November 1798
Date23 November 1798
CourtCourt of the King's Bench

English Reports Citation: 101 E.R. 1264

IN THE COURT OF KING'S BENCH.

Doe, on the demise of Mitchinson, against Carter

Post, 300. 2 East, 481. 3 B. & P. 181. 1 Wight. 386. 3 M. & S. 353.

[5?] dob, on the demise of MiTOHiNSON, against cakter. Friday, Nov. 23d, 1798. A lessee, who had covenanted not " to let, set, assign, transfer, make over, barter, exchange, or otherwise part with the indenture," &c. with a proviso that the landlord might in such case re-enter, gave a warrant of attorney to confess judgment, on which the lease was taken in execution and sold ; Held no forfeiture of the lease. [Post, 300. 2 East, 481. 3 B. & P. 181. 1 Wight. 386. 3 M. & S. 353.] On the trial of this ejectment at the last assizes for Essex, before Mr. Justice (a) Vide Parker v. Welsted, 2 Sid. 39, 111. Sury v. Pigot, Poph. 166. Palm. 444. Latch, 153. Noy, 84. 3 Bulstr. 339, S. C. 8T.R.58. DOE V. CARTER 1265 Buller, a verdict was found for the lessor of the plaintiff, subject to the opinion of this Court on the following case :- The lessor of the plaintiff, being seised in fee of the premises in question, demised the same by lease, dated the 28th of September 1784, to J. Braban; in which lease there is the following covenant and proviso ; that Braban, his executors, administrators, or assigns, should not let, set, assign, transfer, make over, barter, exchange, or otherwise part with this indenture or the said messuage, lands, &c. hereby demised, or any part thereof, to any person or persons whomsoever, for all or any part of the said term, without the special licence, consent and approbation of Mitchinson, his heirs or assigns, in writing; provided always that if Braban, his executors, administrators, or assigns, or any of them, should let, set, assign, transfer, or make over this indenture or the said premises hereby demised, or any part thereof, to any person or persons whomsoever, without the license or consent of Mitchinson, his heirs or assigns, in writing; or if all or any of the covenants, &e. on the part of Braban, his executors, &c. should not be by him or them paid, observed, &c. according to the true intent, &c. in either of those cases it should be lawful for Mitchinson, his heirs and assigns, into and upon the said messuage or tenement, farm, lands, &e. wholly to re-enter, &c. Braban entered into possession of the premises under this lease, and continued possessed of them until, the entry of defendant hereafter mentioned. A creditor of Braban for a just debt took from him a warrant of attorney to confess judgment; upon which a judgment was accordingly entered up as of Michaelmas term 1797. Execution issued in the same term, and the lease was on the llth of December 1797 sold under such execution by the sheriff to the defendant; who was put into possession on the 1st of January 1798, and now continues so possessed. The defendant at the time of his purchase knew that the lease contained the said covenant and proviso. [58] Best for the plaintiff. The lessor of the plaintiff is now entitled to recover, under the proviso against alienation contained in the lease. A landlord in granting a lease to a particular tenant has two objects in view; the one to secure his rent; the other to provide that the estate shall not be deteriorated in the hands of the tenant; and therefore in granting a lease he selects a tenant in whom he has confidence, and in whose occupation (he supposes) both these objects will be secured. But unless he has the means of preventing the tenant alienating, both those objects may be defeated. Covenants and conditions of this kind have always been construed strictly. Berry v. Taunton, Cm. Eliz. 331; More's case, Cro. EL 26; Philpot v. Hoare, 2 Atk. 219. Though the case of Roe v. Galliers (a) is different from the present, because there the question arose on the legality of a proviso in the lease, that the landlord should re-enter on the tenant's committing an act of bankruptcy, which was holden to be a legal condition, yet the reasoning of the Court there is applicable to this case; and the ease of Dommet v. Bedford (V) goes the whole length of deciding the present case. There Bedford gave an annuity to Woodham to be paid into his own hands, " It being the intent of the testator that, if the same should be alienated, the annuity should...

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