This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
61. Crusoe v. Bugby, 3 Wils. 234, 2 W. Blackst, 766; Jackson v. Silvernail, 15 Johns. (N. Y.) 278; Moore c. Guardian Trust Co., 173 Mo. 218, 73 S. W. 143; Har-grave v. King, 40 N. C. 430; Den v. Post, 25 N. J. L. 285; Granite Bldg. Corp. v. Greene, 25 R. I. 586, 57 Atl. 649.
62. In re Doyle (1899) 1 Ir. 113; Field v. Mills, 33 N. J. L. 254; Lynde v. Hough, 27 Barb. (N. Y.) 415. There is a dictum contra in Greenaway v. Adams, 12 Ves. Jr. 395.
R. P. - 11
[ Sec. 54
There is one decision,63 and there are occasional dicta,64 to the effect that a transfer of the leasehold by a bequest thereof is not within a condition or covenant against assignment, and this accords with the general rule that such restrictions upon alienation should be strictly construed. A different view is, however, expressed in some early cases.65
While the passing of the leasehold to the executor or administrator of the lessee is conceded to be by operation of law, and so not within the ordinary condition or covenant against assignment,66 the question whether the executor or administrator is himself bound by such a provision is not clearly settled. That he is so bound appears to be recognized in one state,67 while in another a contrary view has been taken.68 In England, while the executors or administrators, if named in the covenant or condition, are no doubt bound thereby,69 it has been held that if not expressly named they may assign,70 though there is a later dictum to the effect that the words "lessee" and "lessees," in this connection, include executors and administrators.71 There are also cases to the effect that if the word
63. Squire v. Larned, 196 Mass. 134, 11 L. R. A. (N. S.) 634, 124 Am. St. Rep. 525, 12 Ann. Cas. 977, 81 N. E. 880.
64. Fox v. Swann, Style, 482; Doe d. Goodbehere v. Bevan, 3 Maule & S, 353, 361; Crusoe v. Bugby, 3 Wils. 234.
65. See Berry v. Haunton. Cro. Eliz. 321; s. c. sub. nom , Taunton v. Barrey, Poph. 106; Knight v. Mory, Cro. Eliz. 60; Parry v Harbert, 1 Dyer, 45b.
66. Parry v. Harbert, 1 Dyer, 45 b; Crusoe v. Bugby, 3 Wils. 234, 237; Charles v. Byrd, 29 S. C. 544, 8 S. E. 1; 2 Platt, Leases,
251; 1 Williams, Executors (9th Ed.) 809.
67. See Walker v. Wadley, 124 Ga. 275, 52 S. E. 904.
68. Johnson v. Stone, 215 Mass. 219, 102 N. E. 366.
69. Roe d. Gregson v. Harrison, 2 Term R. 425; Loyd v. Crispe, 5 Taunt. 249. See, also, Doe D. Goodbehere v. Bevan. 3 Maule & S. 357.
70. Anonymous, 1 Dyer, 66 a. pl. 8; Anonymous, Moore, 21; Seers v. Hind, 1 Ves. Jr. 294. See Lee v. Lorsch, 37 U. C. Q. B. 262
71. Williamson v. Williamson, 9 Ch. App. 729, 732, per James, L. J.
"assigns" is used, executors and administrators are included, so as to prevent them from making any further assignment.72
- (b) Form of assignment. The English Statute of Frauds requires an assignment, other than by operation of law, to be in writing, and there are in a number of states statutes to a similar effect,73 while in many the general statutory provision that any interest in land, or any interest greater than an estate for a named number of years, can be transferred only by writing, would apply.74
Apart from any statutory requirements, as to the execution of the assignment, no particular form is required, it being necessary only that the intention appear to transfer the tenant's entire interest in the whole or in a part of the premises. A conveyance which purports to be in fee simple is effective for this purpose,75 and, as hereafter stated, if there is a transfer of the whole term it is, in most jurisdictions, an assignment, though purporting to be a sublease.76
The provision of the English Statute of Frauds, requiring an assignment to be in writing, does not contain an exception in favor of short leases, as does the provision of the same statute requiring a lease to be in writing,77 and it has accordingly been decided in England that though a leasehold is of such limited duration that it might have been created without writing, it
72. More's Case, Cro. Eliz. 26; Thornhil v. King. Cro. Eliz. 757; Smalpiece v. Evans, And. 123. See Williams, Executors (9th Ed.) 811. But in Moore in Farrand, 1 Leon. (pt. 1) 3, there is a contrary dictum.
In West Shore R. Co. v. Wen-ner, 70 N. J. Law, 233, 103 Am. St. Rep. 801, 1 Ann. Cas. 790, 57 Atl. 408, it was said that the word "successors" in such a covenant included assigns."
73. See 1 Tiffany, Landlord & Ten. Sec. 154.
74. See post, Sec. 433.
75. Worthington v. Lee, 61 Md. 530; De Pere Co. v. Reynan, 65 Wis. 271, 22 N. W. 761, 27 N. W. 155; McLennan v. Grant, 8 Wash. 603, 36 Pac. 682.
76. Post Sec. 55 (a).
77. Ante Sec. 40b.
[Sec. 54 can nevertheless not be assigned without writing78 In this country, while the same view has been asserted in one state,79 in another a different view has been taken, upon the ground that the legislature could not have intended to prescribe a greater formality for the transfer of an interest than for the creation thereof.80
Occasionally the view has been asserted that a merely oral assignment, otherwise invalid, may be made valid and effective by the assignee's entry into possession and payment of rent, on the theory of part performance,81 but an assignment being a conveyance, it is not susceptible of performance, and it does not seem that the assignee's entry into possession and payment of rent should have the effect of validating the assignment, whatever effect might be given, on the theory of estoppel, or the prevention of fraud, as against the as signor, to the making of improvements by the assignee on the assumption that the assignment was valid.82-83
- (c) By operation of law. The transfer of a leasehold estate by operation of law, as distinguished from voluntary act, occurs most frequently upon the death of the tenant, whether the original lessee or his assignee, such estate, if of a chattel character, passing, with the rest of the decedent's personal property, to his executor or administrator, for the purpose of the payment of debts or other disposition in accordance with his last will or with the laws of the state. The leasehold interest may also pass by operation of law by reason of a sale under execution84 or foreclosure,85 of the bankruptcy of the tenant,86 of condemnation under eminent domain proceedings,87 or in any of the various other ways in which the owner of an interest in land may be divested thereof without his consent.88