Howard v. Doolittle.

tion of the parties, or which can be implied from the nature of their contract. Even when a house or other building is let for a special purpose, and its use or occupation for any other is in terms prohibited, there is no implied contract or warranty on the part of the landlord, that the tenement shall be, or continue, fit for the purpose for which alone it is demised. The provision restricts the tenant, but imposes no obligation upon the landlord.

Nor is this all. Not only is the landlord not bound to repair, in any case, unless by force of an express agreement, but the tenant, even when the tenement demised ceases to be habitable, or is wholly destroyed, is not discharged, in whole or in part, from the payment of the rent subsequently accruing. Unless by a provision in the lease, the rent, upon the happening of such a contingency, is suspended or reduced, the promise of the tenant to pay the whole stipulated rent during the whole term, is construed as unqualified and absolute, notwithstanding the apparent failure of the consideration upon which it was founded.

If these established rules are applicable to the present case, the right of the plaintiff to recover cannot be questioned, and that they are applicable we see no reason to doubt.

It is not pretended that the lease to the defendants contains an express covenant on the part of the plaintiff to repair; nor, in our opinion, does it contain a single provision that can be legally or reasonably interpreted as creating, or intended to create, such an obligation.

It is true, that the lease contains a covenant in the usual words, for the quiet possession and enjoyment by the defendants of the premises demised, nor can it be denied that the words may be so interpreted as to favor the argument for the defend

But the just interpretation of these words we have no right to consider as an open question. A covenant for quiet enjoyment, whether express or implied, it has long been settled, means only that the tenant shall not be evicted by a paramount title. It relates only to the title, and not to the actual possession or undisturbed enjoyment, where there is no eviction, of the premises demised (Shep. Touchstone, 165, 169, 202). We can perceive no grounds for the supposition, that in this case

Howard v. Doolittle.

the usual words of the covenant were meant to be understood by the parties in any other than their usual and established sense. If the parties had any other intention, it is not an intention that we can deduce from their language, and, therefore, not an intention to which, as judges, we can give effect.

The contract of the parties undoubtedly contains many provisions that do not properly belong to a lease, and may, therefore, not improperly be termed a mixed contract; but we do not understand how these additional provisions (those relating to the sale of the furniture, the restoration of the fixtures, &c.) can affect the construction of those which relate solely to the letting of the premises, so as to vary the relative obligations of the parties as landlord and tenants. It is, indeed, apparent that the parties expected that the premises demised would be fit for occupation as a hotel during the continuance of the lease; but in any case where a house is let for a special purpose, and is believed to be fit for that purpose at the commencement of the lease, there is a similar expectation, and if this expectation is to have, in any case, the force of a positive covenant, the same effect must be given to it in all. The rule of law would then be, that whenever a building is let for a special purpose, there is an implied covenant or agreement on the part of the landlord that it shall continue fit for that purpose during the whole term for which it is demised; but the rule, it has already been stated, is directly opposite-and that this is so, is sufficiently proved by the authorities to which we were referred by the counsel for the plaintiff, several of which are full to the point, and are uncontradicted.

The only authority on which the learned counsel for the defendants seemed much to rely, is the case of Smith v. Marrable (11 Mees. & Wels. 5); but we think that the authority of the decision in that case may well be doubted, and that, if its authority be admitted, it has no application to the case before us. If the decision proceeded on the ground that there is an implied condition in every letting of a house, that it shall be fit for habitation, we do not hesitate to say that it is not law; and if it proceeded on the ground that the letting was of a furnished house, and included the furniture as well as the house, it may be that it creates a valid exception from the general

Howard v. Doolittle.

rule, but this is an exception not embracing the case before us, since here the furniture was not let with the hotel, but was sold absolutely to the defendants.

It is said that the decision in Smith v. Marrable was sustained by the same court in Sutton v. Temple (12 M. & W. 52), and in Hart v. Windsor (Id. 68), but, as we understand these subsequent cases, so far from sustaining, they absolutely overrule the prior decision.

In Hart v. Windsor, Parke, B., who delivered the opinion. of the court, distinctly admits that the opinion which he gave in Smith v. Marrable was erroneous, and that the case "could not be supported on the grounds on which he rested his judgment" (12 M. & W. 89); and in another part of his opinion he lays down the true rule in the following terms: "There are many authorities which clearly show that there is no implied contract that the property shall continue fit for the purpose for which it is demised, as the tenant can neither maintain an action, nor is he exonerated from the payment of rent, if the house demised is blown down or destroyed by fire (Marsh v. Cooper, 2 Stra. 763; Balfour v. Weston, 1 T. R. 310; and Ainsley v. Ritter, there cited), or gained upon by the sea (Taverner's case, Dyer, 56 [a]), or the occupation rendered impracticable by the King's enemies (Paradine v. Jane, Alleyn, 26). In all these cases the estate of the lessee continues, and that is all the lessor implicitly warrants" (12 M. & W., pp. 85, 86).

We observe, in conclusion, that should we even admit that Smith v. Marrable is a full authority for the position for which it has not unfrequently been cited, namely, that when a building let as a dwelling-house ceases to be fit for habitation, the tenant may abandon the possession, and thus discharge himself from the payment of rent, it would by no means follow that the landlord, in such a case, is bound to place the house in a habitable condition, and is liable to an action in the event of his neglect or refusal; and it may be confidently affirmed, that not a single case is to be found in which it has been held that such a duty can attach upon the landlord, otherwise than by virtue of an express agreement.

The plaintiff is, therefore, entitled to judgment for the whole

Langdon v. Astor's Executors.

sum, with interest, which it is admitted that he expended; and placing our decision upon these grounds, it is unnecessary, and would be improper, to express any opinion upon the legal construction and effect of the covenant, by which the defendants bound themselves "to keep the premises in reasonable order and condition." It may be that the defendants were not bound to make the repairs in question; it is certain that the plaintiff

was not.

Judgment for plaintiff, with costs.

DOROTHEA A. LANGDON v. WM. B. ASTOR, WASHINGTON IRVING, and Others, Executors, &c.,, of JOHN JACOB ASTOR, Deceased.

The will of J. J. A. was proved before the Surrogate by the subscribing witnesses to have been duly executed on the 31st of December, 1836; a first codicil on the 19th of January, 1838; a second on the 9th of January, 1839; and a sixth on the 3d of June, 1841. These instruments, together with five other successive codicils, were also proved to have been acknowledged and published by the testator as his last will and codicils thereto, on the 11th of January, 1845; and upon these proofs all the instruments were admitted to probate by the Surrogate, as the last will and testament of the deceased.

Held, that the will and codicils were not to be regarded as an entire instrument, executed for the first time on the 11th of January, 1845; but that the sentence of the Surrogate, read in connexion with the proofs upon which it was founded, established that the instruments were proved before him as nine distinct instruments, which together composed the last will and testament of the deceased. Held, that the act of the testator on the 11th of January, 1845, was not a re-execution of the will and codicils so as to make them speak from that date, instead of that of their original execution, but that, in judgment of law, it amounted to no more than a re-publication.

Held, that a clause in the first codicil relative to the effect of advancements to be made by the testator upon the provisions in his will and codicils, was not limited in its operation to the will and the codicil in which it was found, but was also applicable to the second and all subsequent codicils.

The testator by his will bequeathed to his daughter, the plaintiff, the income during life of $100,000 of the debt of the city of New York, bearing five per cent. interest, with an absolute remainder to her issue living at her death; and the will contained a provision, that, "in case any of the stocks or funds therein specifically bequeathed should not be in the testator's hands at his decease, the

Langdon v. Astor's Executors.

several bequests should be made up, by purchases at the expense of his estate of similar stock or funds, and to the same amount;" and by a clause in the sixth codicil this provision was made applicable to all the codicils. The first codicil, dated the 19th of January, 1838, contained this clause: “Inasmuch as I may make advancements, or beneficial provisions, for persons or purposes provided for in my will and codicils, it is my direction that such advancements, if charged in my book of accounts, shall be deemed so much on account of the provision, in my will or codicils, for such persons or purposes." The testator, by his second codicil, dated the 19th of January, 1839, bequeathed to the plaintiff the income during life of $100,000, deposited in the New York Life Insurance and Trust Company, the capital on her death to her children therein named. He also, in the same codicil, bequeathed to the same children $100,000 of the debt of the city of New York, usually called the Water Loan, bearing interest at five per cent.

On the 19th of August, 1839, the testator transferred to Wm. B. Astor, in trust for the plaintiff during life, and for her six children on her death, $100,000 of City Water Stock, and $100,000 deposited in the New York Life Insurance and Trust Company; and on the following day entries were made by his direction in his books of accounts, by which W. B. A., in trust for the plaintiff, was made debtor for these stocks, "as transferred to him in trust, as property left to Mrs. L. (the plaintiff) in similar items in a codicil of his will." And on November 23, 1840, the plaintiff was charged in his books of accounts as debtor for the same stocks, as property bequeathed to her in similar items by a codicil of his will." A draft of the second codicil was found among the papers of the testator at his death, on one of the pages of which there was a memorandum in his handwriting in these words: "The stock here alluded to has been transferred to Mrs. L. and her children, $100,000 Life Insurance, and $100,000 Water Stock," and on which there was also an endorsement in the handwriting of the testator in these words: "The stock herein given is the same which W. B. Astor holds, in trust, for Mrs. Langdon and her children. 1st Oct., '40."

It was held by Sandford, J., at special term, that both the legacies to the plaintiff, that of $100,000 bequeathed to her by the will, and the $100,000 Trust Company deposit by the second codicil, were adeemed and satisfied by the trust created by the testator for her and her children.

Upon the appeal from his judgment the judges at the general term, differing in their views of the law, delivered their opinions seriatim :—

CONCLUSIONS OF DUER, J.

First. That the legacies in question were not specific, but general, or pecuniary. (Campbell, J., concurred.)

Second. That as general, they were entitled to satisfaction from the personal estate of the testator, unless they had been satisfied in fact, or by intendment of law, or had been duly revoked by an instrument in writing. Third. That the trust created by the testator in his lifetime, for the benefit of the plaintiff, of stocks, corresponding in description, amount, and value with those bequeathed to her, did not necessarily operate as a satisfaction of the legacies, since, as they were entirely consistent, the trust might well operate, not as a substitute for the legacies, but as a cumulative bounty. (Campbell, J., concurred.)