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 .
But see, apparently contra. Little Rock Granite Co. v. Shall, 59 Ark. 405, 27 S. W. 562, 27 L. R. A. 190, 43 Am. St. Rep. 38; German-American Sav. Bank v. Gollmer, 155 Cal. 683, 24 L. R. A. (N. S.) 1066, 102 Pac. 932;
293 Real, Property. [ Sec. 83 constitute a subsequent breach, as by extending the time for performance of the condition.7
There are dicta to the effect that a condition precedent may be waived,8 as well as a condition subsequent. This, however, appears open to question. The waiver of such a condition involves an attempt to create, instead of a possibility of an estate to commence in futuro, an actual estate commencing immediately, an entirely different interest, and one cannot, in other than exceptional cases, create an estate in land orally, or, it would seem, even in writing, by words of waiver only.10 In so far as it may have been considered in any case10a that by reason of the action of the grantor or testator's heir in discouraging the performance of the condition precedent or in rendering it impossible, the grantee or devisee was justified in asserting an estate in the land commencing immediately in interest, without reference to the condition, the decision may, it is conceived, be more satisfactorily based on the theory that the devise or conveyance is to be construed as not intended to interpose any condition precedent in that particular contingency, that is, as involving an alternative devise in that contingency, free from condition.
- The rule in Dumpor's. Case. By the "rule in Dumpor's Case,"11 if the landlord gives a license to the tenant for the breach of a condition against assignment, or if the condition be not to assign without license, and a license is once given to assign, the condition is wholly destroyed. This rule, based as it is on extension of the technical theory of the unapportionability of a condition, though frequently the subject of criticism12 has been followed in a few cases13 and has been referred to as law in others.14 Occasionally it appears to have been judicially repudiated,15 while sometimes it has been regarded as applicable to oilier conditions as well as those against assignment16 with the exception, it has been suggested, of those conditions which are "continuous" in character, as clearly contemplating repeated acts, or failures to act, and therefore the possibility of repeated breaches.17 A mere waiver of the right to enforce a forfeiture for a breach which has occurred does not, by the great weight of authority, have any
Carpenter v. Wilson, 100 Md. 13, 59 Atl. 186; Murray v. Harway, 56 N. Y. 337; Hanson v. Hanson Hardware Co., 23 N. D. 169, 135 N. W. 766; Cogley v. Browne, 38 Leg. Int. (Pa.) 392, 15 Phila. (Pa.) 162.
7. Baker v. Jones.. 5 Exch. 498, where it was held that, though a previous breach of condition to repair was waived by acceptance of rent, a forfeiture might be subsequently enforced for nonrepair, though a reasonable time for such repairs had not elapsed since the receipt of rent, such reasonable time having elapsed since the repair was required.
8. Borst v. Simpson, 90 Ala. 373, 7 So. 814; Fisher v. Fisher, 80 Neb. 145, 113 N. W. 1004, And it was so decided in Jones v. Bramblet, 2 111. 276.
9. See Davis v. Angel, 4 De G. F. & J. 524; 2 Jarman, Wills, 893.
10. Post Sec. 435.
10a. Ante Sec. 81(b), note 33. 11. 4 Coke, 119b; 1 Smith's Leading Cas. 47(95).
12. See article by Joseph Wil-lard, Esq., in 7 Am. Law Rev. 617, and references therein and in 1 Tiffany, Landlord & Ten. p. 944.
13. Brummell v. Macpherson, 14 Ves. Jr. 173; Pennock v. Lyons, 118 Mass. 92; Murray v. Harway, 56 N. Y. 337.
14. Doe d. Boscawen v. Bliss, 4 Taunt. 735, Gazlay v. Williams, 210 U. S. 41, 52 L. Ed. 950; Wert-heimer v. Wayne Circuit Judge, 83 Mich. 56, 47 N. W. 47; Sharon Iron Co. v. Erie, 41 Pa. St. 341.
In Reid v. John F. Wiessner Brewing Co., 88 Md. 234, and, it seems, in Siefke v. Koch, 31 How. Prac. (N. Y.) 383; the rule of Dumpor's Case was applied even to a covenant, though "assigns" was not mentioned. In thus extending the rule to covenants, the court departed from the precedents both in England and this country. See Dakin & Bacon v. Williams & Seward, 17 Wend. (N. Y.) 447, 22 Wend. 201; Gannett v. Albree, 103 Mass. 372; Paul v. Nurse, 8 Barn. & C. 486; 2 Platt, Leases 270 et seq.; note in 12 Harv. Law Rev. 273.
15. Kew v. Trainor, 150 111. 150, 37 N. E. 223; Moss v. Chap-pell, 126 Ga. 196, 11 L. R. A. (N. S.) 398, 54 S. E. 968.
16. Williams, Real Prop. (4th Am. Ed.) 398; Dakin v. Williams, 17 Wend. (N. Y.) 447; Williams v. Dakin, 22 Wend. (N. Y.) 209; Sharon Iron Co. v. City of Erie, 41 Pa. St. 349. See, also, Gannett v. Albree, 103 Mass. 372.
17. See American notes to 1 Smith. Lead. Cas. 108, 110; Jones v. Durrer, 96 Cal. 95, 30 Pac. 1027; such effect in destroying the condition as has, under the rule referred to, a previous license for a breach.18
It has been said that the only method of avoiding the effect of the rule in Dumpor's case is for the lessor, on giving to the lessee a license to assign, to create a fresh provision for re-entry on any future breach;19 and that the mere insertion in the license of a provision that the assignee shall hold subject to the performance of the covenants and conditions contained in the original lease is insufficient.20