The defendant cannot escape liability on the ground that the statement of the agent amounted to a warranty because it is not so pleaded in the answer.
7. Express Covenants. a. For renewal of a lease.
. 28 Missouri, 420. - 1859.
Ejectment by Blackmore to recover the possession of certain premises. Plaintiff had held a lease of the land for a ten years' term. The lease contained a covenant for renewal in the following language: "And it is hereby covenanted and agreed by and between the said parties, that at the end of the term hereby demised this lease shall be renewable for the further term of ten years; and so on from time to time perpetually at the option of the party of the second part, his executors, administrators or assigns, he or they giving to the party of the first part, in every instance, a notice in writing of his or their wish to renew the same three months at least before the end of the term. And every renewal lease shall contain all the covenants, agreements, clauses and stipulations herein contained." * * *
The interest of plaintiff was sold out on a judgment against him to one Hayne, under whom defendant, Boardman, holds. Just before the expiration of the term Blackmore and Hayne both made application for a renewal of the lease and the renewal was executed to Blackmore, who now seeks to obtain possession of the land. Judgment for defendant. Plaintiff appeals.
Richardson, J., delivered the opinion of the court. - The numerous authorities cited by the defendant's counsel establish in his favor the first two propositions presented in the statement. As the law discourages perpetuities, it does not favor covenants for continued renewals; but, when they are clearly made, their binding obligation is recognized and will be enforced. The covenant for renewal is only an incident to the lease, and as it cannot be passed without the principal, the conveyance of the principal by a proper description will necessarily carry the incident. They are inseparable, and a right of action cannot exist in favor of a person claiming the benefit of the covenant without any right to the possession of the leasehold; but the covenant, being annexed to the estate, runs with it, and cannot be retained by itself or assigned or severed so as to give an independent cause of action. A sale of the land under execution will pass to the purchaser all the covenants that run with it as effectually as if he had received a conveyance from the lessee; for as the purchaser, after he acquires possession, is bound to pay the rent and in that way assumes the burdens of the lease, he has the right to take advantage of the covenants that touch and concern the thing demised, which enhance the value of the estate. * * *
16 Massachusetts, 238. - 1819.
Parker, C. J. - The point presented by the pleadings in this case seems to have been considered to be very clear by the bar; for the counsel for the defendant, although industrious and able, could produce no authority to justify their plea. On the other hand, the authorities in favor of the plaintiff are numerous, clear and decisive; so that, whatever may be thought of the merits of the doctrine they maintain, when first established, there is no escape from it now, until the Legislature shall see fit to alter the law, which it is hardly probable they will ever do; since parties may always protect themselves against it, by due caution in making their contracts.
A formal opinion, in a case so free from doubt, and so well settled in the books would be unjustifiable, were it not for the ignorance generally prevailing in the country, of the legal effect of covenants in leases and other instruments, which are often executed without any particular inspection or knowledge of their contents; and thus people are surprised into contracts, which neither party intended, when the instrument was executed.
Printed forms of leases are most generally made use of, and when they are not obtained, copies are made from books of forms, or from some old instrument in print. In this way covenants are transmitted from one generation to another, which are never made in England, without being very well understood; but, with us, often astonish the party to be bound, when the occasion arises, which calls for the performance of them.
Thus it was matter of surprise a few years ago that a lessee for years, who had covenanted to pay rent during the term, should be held to pay it after the buildings, which alone were valuable, were destroyed by fire. And yet nothing was more clear than that he had stipulated so to do; as was found in the case of Fowler et al. v. Bolt et al., referred to by the counsel for the plaintiff. So in the present case, although the defendant had, under his hand and seal, stipulated that he would keep in repair, support and maintain the fences and buildings, with the exception of natural decay, he was undoubtedly astonished at being called upon to rebuild a house, etc., the use of which he had enjoyed but for one year; and yet he has, in express terms, covenanted so to do. His excuse would be that he never read the covenants in his lease, or that he did not understand the force and effect of the terms. But the law does not protect men from their own carelessness or ignorance. The former they must cure; the latter they must provide against by asking counsel. Any lawyer, in any village of the commonwealth, could have stated the hazard, and would have guarded against it, by introducing such an exception, as is now generally adopted in mercantile contracts, "fire or other casualty excepted;" which would make the contract conformable to the intention of both the parties, as the words "dangers of the sea and inevitable accidents" do in a charter party or bill of lading.
The case of Walton v. Waterhouse, and the cases cited by Sergeant Williams in his note to that case, contain all the law upon this subject; the principle extracted from which is, "that although a man may be excused from a duty imposed upon him by the law, if he is disabled from performing it without any fault of his own; yet if by his own contract, he creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity; because he might have provided against it by his contract." This doctrine is recognized and enforced in the case of Bullock v. Dommitt, and in the case from our own reports, before referred to.