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 .
The legal act by which the relation of landlord and tenant is created, the lease, is, as we have before stated,25 a conveyance vesting an estate in the tenant, and not a contract imposing a personal obligation on either party. Almost invariably, however, the making of the conveyance is accompanied by the making of one or more contractual stipulations by one or both of the parties to the conveyance. If the conveyance is incorporated in a written instrument, as it must be, by reason of the Statute of Frauds, when the estate conveyed is above a certain quantum as regards duration,26 the accompanying contractual stipulations are ordinarily inserted in the same instrument, and, as we have before remarked,27 the instrument as a whole is referred to as a "lease," an expression which is also applied to the whole transaction considered as a legal act, or aggregate of legal acts, apart from their incorporation in any written instrument. Contractual stipulations entered into by the lessor or lessee, or both, thus evidenced by a written "lease," are ordinarily termed the "covenants of the lease," though the word "covenant" is, at common law, properly applicable to such stipulations only if the writing is under the seal of the person bound thereby. It is, no doubt, in part owing to the fact that these contractual stipulations are thus ordinarily incorporated in the same instrument as the demise itself, that courts so frequently use the expression "contract of lease," losing sight of the fact that the relation of tenancy is created, not by a contract, but by the conveyance, by one person to another, of an estate less in quantum than that of grantor. If the conveyance by which the tenancy is created is oral, the accompanying contractual stipulations would ordinarily be oral.28
J. L. 169, 50 Atl. 670; De Mott v. Hagerman, 8 Cow. (N. Y.) 220, 18 Am. Dec. 443; Caswell v. Dis-trich, 15 Wend. (N. Y.) 379; Moore v. Linn, 19 Okla. 279, 91 Pac. 910; Messinger v. Union Warehouse Co., 39 Ore. 546, 65 Pac. 808; Rogers v. Frazier Bros. & Co. (Tex. Civ. App.), 108 S. W.
727. But see Alexander v. Zeig-ler, 84 Miss. 560, 36 So. 536; Minneapolis Iron Store v. Branum, 36 N, D. 355, L. R. A. 1917E 298, 162 N. W. 543.
25. See ante Sec. 39.
26. Ante Sec. 42.
27. Ante Sec. 39.
The possible subjects of such contractual stipulations, entered into at the time of the creation of a tenancy, are innumerable. A contract by the lessee to pay rent is, in this country, almost universal, and among other contracts of frequent occurrence are those in regard to the mode of using the premises, to make improvements, to insure, to pay taxes and to renew the lease.
A covenant may be express, or "in deed," as being created by agreement of the parties, whether it be framed in express terms, or is merely matter of inference from the language of the instrument, or it may be implied, or a covenant "in law," as being an agreement which the law infers from the use of certain recognized terms in the creation of an estate,29 or from the existence of a certain relation between parties.30 The term "implied" covenant is also quite frequently extended to cover what is properly an express covenant, because created by the agreement of the parties, but which is expressed with such a degree of obscurity as to be discoverable only by a course. of reasoning and construction.31
- (b) Of quiet enjoyment and power to demise.
A covenant for quiet enjoyment has always been implied from the use of the word "demise,"32 and occasionally
28. That an oral demise may thus be accompanied by contractual stipulations, see Bolton v. Tom-lin, 5 Adol. & E. 586.
29. Williams v. Burrell, 1 C. B. 402.
30. Rawlie, Covenants, Sec. 272.
31. For instance, when a lessee covenanted that he would, at all seasons of burning lime, supply the lessor with lime at a stipulated price, a covenant was "implied," or rather "inferred," that he would burn lime at such seasons. Shrewsbury v. Gould, 2 Barn. & Ald. 487.
32. Andrews' Cases, Cro. Eliz. 214; Budd-Scott v. Darnell (1902) 2 K. B. 351; Stott v. Rutherford, 92 U. S. 107, 23 L. Ed. 486; Ware v. Lithgow, 71 Me. 62; Folts v. Huntley, 7 Wend.
[ Sec. 49 of other words of leasing such as "let" and "lease;"33 and according to the great weight of authority, such a covenant is implied from the mere relation of landlord and tenant, independently of the presence of any particular words in the lease, and accordingly it exists even in the case of an oral lease.34
From the word "demise" in a lease, the law implies not only a covenant for quiet enjoyment, but also a covenant of title, or, which is the same thing, a covenant that the lessor has power to demise.35 And it has apparently been decided in England that the word
(N. Y.) 210; Lanigan v. Kille, 97 Pa. St. 120, 39 Am. Rep. 797; Groome v. Ogden City Corporation, 10 Utah 54, 37 Pac. 90.
33. Hamilton v. Wright's Adm'r, 28 Mo. 199; Young v. Hargrave's Adm'r, 7 Ohio (pt. 2) 63; Maule v. Ashmead, 20 Pa. 482; Black v. Gilmore, 9 Leigh (Va.) 446, 448, 33 Am. Dec. 253.
34. Picket v. Ferguson, 45 Ark. 177, 55 Am. Rep. 545; McDowell v. Hyman, 117 Cal. 67, 48 Pac. 984; Gazzolo v. Chambers, 73 111. 75; Hoagland v. New York, C & St. L. Ry. Co., 1ll Ind. 443, 13 N. E. 572, 12 N. E. 83; Cohen v. Hayden, 180 Iowa 232, 163 N. W. 238, 157 N. W. 217; Stewart v. Murphy, 95 Kan. 421, Ann. Cas. 1917C 612, 148 Pac. 609; Dunck-lee v. Webber, 151 Mass. 408, 24 N. E. 1082; Mack v. Patchin, 42 N. Y. 167, 1 Am. Rep. 506; Smith-field Improvement Co. v. Coley Bardin, 156 N. C. 255, 36 L. R. A. (N. S.) 907, 72 S. E. 312; Hanley v. Banks, 6 Okla. 79, 51 Pac. 664; Wolf v. Eppenstein, 71 Ore. 1, 140 Pac. 751; Edwards v. Perkins, 7 Ore. 149; Kelly v. Miller, 249 Pa. 314, 94 Atl. 1055; Eldred v. Leahy, 31 Wis. 546.
But see Lovering v. Lovering,
13 N. H. 513, 517; Mershon v. Williams, 63 N. J. L. 398, 44 Atl. 211; May v. Levy, 88 N. J. L. 351, Ann. Cas. 1917C 619, 95 Atl. 999.