building, the purposes for which it is leased and occupied, and other similar circumstances; nor should fanciful damage be claimed.1

The covenant to pay rent is necessarily implied from the very nature and relation of a tenancy for years; yet such a covenant is almost invariably inserted in a lease, notwithstanding the special reservation of rent, besides, in another part of the instrument. Rent is a demand of so very high a nature, that nothing can excuse the tenant from its periodical payment, unless he has been legally compelled to vacate the premises, or the landlord has accepted another person in his stead. Through the unavoidable accidents of fire, flood, and tempest, the premises may become unfit for habitation; yet, as we have already shown, unless the lessor has protected himself by suitable stipulations to the contrary, or a local statute changes the rule of the common law, our courts have no choice but to hold him to a hard bargain, and make him pay his rent all the same. But the implied covenant to pay rent is distinct from that which may have been expressly stipulated in the lease.

Of the covenant to pay taxes and assessments we have already spoken, with reference to the lessor; and it only remains to add that, theoretically, the public treats the tenant as the party primarily liable for such assessments, and the tax or assessment itself as a charge upon the premises in the hands of the occupant, who is expected to claim indemnity from his landlord, deducting the tax from his rent bills. A special covenant in suitable words should be inserted in every lease, where the mutual intention is that the lessee. shall pay both rent and taxes.3

1 Smith Landl. and Ten. 188-202; Viner's Abr. Waste; Hart v. Windsor, 12 M. & W. 77; Taylor Landl. & Ten. §§ 343-368, and cases cited. See Makin v. Watkinson, L. R. 6 Ex. 25; 111 Mass. 531.

2 Smith Landl. and Ten. 96, 125; Taylor ib. §§ 369-394; Holtzapffel v. Baker, 18 Ves. 115; Hallett v. Wylie,

3 Johns. 44; Belfour v. Weston, 1 T.

R. 310; Fowler v. Bott, 6 Mass. 63. See Dyer v. Wightman, 66 Penn. St. 425.

8 Taylor Landl. and Ten. §§ 395399; Gabell v. Shevell, 5 Taunt. 81; Stubbs v. Parsons, 3 B. & A. 516; Smith Landl. and Ten. 98, 99. See Hughes v. Young, 5 Gill & J. 67; Jeffrey v. Neale, L. R. 6 C. P. 240. Whether under such a special cove

§ 32. Covenants usual on the Lessee's Part; Subject continued. The covenant to insure, which is frequently to be found in long leases involving large sums of money, is one of modern creation, and must be express in order to be binding.1

The covenant not to assign or underlet is an important one, and especially favored by landlords; since the tenant has a clear right at common law not only to admit subtenants but also to transfer the premises to others for his term, as may suit his own convenience, putting another in his place while in no wise relieving himself of liability to his landlord. But the owner of real estate is rather stubborn in insisting upon the right to choose his own tenants; and hence a well-drawn lease in these days will generally be found to contain an express covenant, upon the lessee's part, not to assign or underlet the premises without the previous written consent of the lessor; a covenant which courts are not disposed to extend very far by construction, as the cases will show.2 Inasmuch, too, as this covenant not to assign applies only to voluntary, and not to involuntary, assignments, it is not unfrequent for a lessor to guard against the lessee's bankruptcy or insolvency, by still another special covenant that such bankruptcy or insolvency shall forfeit the lease.3

Covenants to reside on the premises are rarely met with; nor, under ordinary circumstances, would it be reasonable for

nant, the lessee should be held bound to pay betterment" taxes, so called, cf. Love v. Howard, 6 R. I. 116; Mayor Re, 11 Johns. 77; Pray v. North Lib., 31 Penn. St. 69; Taylor § 398 note; contra Simonds v. Turner, 120 Mass. 188.

1 Taylor Landl. and Ten. §§ 400, 401; Smith ib. 100; Thomas v. Van Kapff, 6 Gill & J. 372; Doe v. Peck, 1 B. & Ad. 428.

2 Taylor Landl. and Ten. §§ 402413; Smith ib. 115-119; Church v. Brown, 15 Ves. 265; Doe v. Carter, 8 T. R. 61; 4 Kent Com. 130. Whether

a covenant not to assign without the lessor's assent is a "usual covenant," see Hampshire v. Wickens, 7 Ch. D. 555. Such covenant being for the benefit of the lessor only, the assignment without consent is not void, but voidable only; nor is a forfeiture worked thereby, unless the lease so expressly provides. Webster v. Nichols, 104 Ill. 160; Eldredge v. Bell, 64 Iowa, 125.

3 Roe v. Galliers, 2 T. R. 133; Doe v. Clarke, 8 East, 185; Taylor Landl. and Ten. § 409.

the lessor to exact them.1 The covenant to build after a certain pattern applies usually to long leases which contemplate some extensive improvement by the lessee.2 The covenant against carrying on a trade is available for protecting the lessor against certain trades peculiarly offensive, or against business in general. Contracts in restraint of trade are, as a rule, injurious to the interests of the public; and we should not expect to find covenants in leases which obstruct the beneficial use of leased property construed strongly against the lessee; yet landlords may not unreasonably take precautions so as to prevent their elegant dwelling-houses from being turned into workshops, and may insist upon securing their real estate against depreciation in value on their tenants' hands, through some injurious use made of the premises contrary to their wishes.3

The covenant for particular modes of cultivation is a characteristic of agricultural leases. Its object is sometimes to enforce the customary mode as to good husbandry, and sometimes to prescribe a special mode, contrary to custom. The lessee of a farm is bound, independently of express covenants, to cultivate the premises in conformity with the reasonable and usual custom of the neighborhood. The covenant to redeliver fixtures in good order at the end of the term affords the lessor an ample remedy in case of loss or injury to such articles affixed to the freehold - for instance, furnaces and ranges as the lessee may have the right to use while his term lasts, but no longer.5

§ 33. Covenants usual on a Lessee's Part; Subject continued. Such, then, are the covenants usual in a lease on

1 See Taylor Landl. and Ten. § 414; Doe v. Hawke, 2 East, 481.

2 Taylor Landl. and Ten. § 415; Mayor v. Brooklyn Fire Ins. Co., 41 Barb. 231; Roper v. Williams, Turn. & R. 18.

v. Brockway, 21 Wend. 157; Wadham v. Postmaster-General, L. R. 6 Q. B. 644.

4 Taylor Landl. and Ten. §§ 420423; Roberts v. Barker, 1 Cr. & M. 808; Tempest v. Rawling, 13 East, 18; Buck v. Pike, 27 Vt. 529; Webb v. Plummer, 2 B. & A. 746.

3 Smith Landl. and Ten. 101; Simons. Farren, 1 Bing. N. C. 126; Doe v. Bird, 2 A. & E. 161; Taylor Landl. and Ten. §§ 416, 418, and cases cited; Pierce v. Fuller, 8 Mass. 223; Chappel 237.

5 Higgins v. Whitney, 24 Wend. 379; Perry v. Chandler, 2 Cush.

the part of the lessee. And it may be added, that the covenants for rent, to repair, to pay taxes and assessments, to reside on the premises, and to cultivate in a certain manner, all run with the land and bind the assignee as well as the lessee himself.1

§ 34. Assignment of Lease; Act of Parties. That privity of estate which exists between landlord and tenant is not confined to the original parties to a lease, but extends to all who may acquire a subsequent interest therein. A contract is or is not assignable; but estates in land may be assigned. The landlord can make over his reversion, or the tenant his term; and assignments of this sort, like all other kinds of assignment, may be brought about either by act of the parties or by act of the law.

An assignment by the landlord is necessarily by deed, since his reversion is an incorporeal hereditament, and, as the phrase goes, lies in grant; and in addition to this, it was formerly requisite, in order to make the assignment perfect, that the tenant should have attorned, or in some way recognized the assignee as his new landlord. But this last troublesome formality was dispensed with in England by Stat. 4 Anne, c. 16, § 9, which made the landlord's assignment valid without any attornment on the tenant's part; and yet so far respected the interests of the tenant as to save him from being prejudiced by the payment of any rent to the former landlord before he had received notice of the change. The effect of this statute (whose provisions are commonly adopted in the United States) is to require that notice be given to the tenant before he can be sued by the assignee of his landlord for rent accruing subsequent to the assignment.2 As to the tenant, he might formerly have assigned his interest by parol;

1 As to the distinction between such covenants and those which merely bind the person, see further, Taylor Landl. and Ten. § 260 et seq.

2 See Smith Landl. and Ten. 280, 281; Moss v. Gallimore, Dougl. 279; Taylor Landl. and Ten. § 442; Co.

Lit. 309 b; Van Rensselaer v. Read, 26 N. Y. 558; 1 Smith Lead. Cas. 5th Am. ed. 697; Cook v. Guerra, L. R. 7 C. P. 132. The rule of Stat. 4 Anne appears to have been in force previously in some of our States. 15 Mass. 26; 34 Mich. 292; Hansen v. Prince, 45 Mich. 519; 41 Cal. 432.

but the Statute of Frauds now requires all assignments of leases or terms of years to be in writing, and to be signed by the party assigning, or by his agent lawfully authorized for that purpose. And we have just seen that the lessee is frequently restrained still further by a covenant not to assign without his lessor's permission.2

The assignee of the lessor has a right to sue the lessee, and vice versa the assignee of the lessee can sue the lessor, upon covenants which touch and concern the thing demised,that is to say, covenants which run with the land, and upon these alone. This right, so far as concerns assignees of the lessor, is recognized in a statute passed during the reign of Henry VIII.; which statute applied, however, to leases by deed only. As to the lessee and his assignee, the commonlaw rule was, that while the former might transmit his privity of estate, so that such liabilities would run with the land, he could not transmit the privity of contract, but would remain bound by his own covenants. Nor could the lessor's assignee, at common law, and independently of later statutes, sue or be sued upon the covenants contained in his lease.5 Where a lease has been assigned, there is, during the continuance of the assignee's interest, a duty on his part towards the lessee to pay the rent and perform all the covenants; but this duty is commensurate with his interest; and he may himself assign over, and so avoid all liability for future breaches of covenant, even though he should assign over to an insolvent person.

§ 35. Assignment of Lease; Operation of Law. - But a lease

1 Stat. 29 Car. II. c. 3, § 3. By Stat. 8 & 9 Vict. c. 106, such assignments are void at law unless made by deed. See Smith Landl. and Ten. 62, 282; Taylor ib. §§ 427, 437, and cases cited.

2 Supra, § 32.

3 See Smith Landl. and Ten. 284, and Maude's n.; Taylor ib. § 439; Standen v. Chrismas, 10 Q. B. 135.

4 Thursby v. Plant, 1 Saund. 240; Taylor Landl. and Ten. § 436 et seq., and cases cited.

5 Co. Lit. 215 a; Milnes v. Branch, 5 Maule & S. 411. The New York statutes and those of some other States now give an assignee, whether of the reversion or the term, the benefit of any agreement contained in the lease assigned. See Taylor Landl. and Ten. § 441; 1 N. Y. R. S. 747, §§ 23-25.

6 Smith Landl. and Ten. 294, 295; Taylor v. Shum, 1 B. & P. 21; Wolveridge v. Steward, 1 Cr. & M. 644; Smith v. Peat, 9 Ex. 161; Armstrong