4. Covenant to renew. recovered in rebuilding the premises; nor will a Court of Equity restrain the landlord from suing for the rent, until the tenant shall have rebuilt the premises. (p) If a lessor expressly covenant with his lessee, that he will, in case the premises shall be burned down, "rebuild and replace the same in the same state as they were in before the fire, he is only bound to restore the premises to the state in which they were before he let them, and not to rebuild additions made by his tenant. (q) IV. Another covenant frequently inserted in the lease on the part of the lessor is, that he will renew the lease to the lessee at its expiration. A covenant for continued renewals, as it tends to create a perpetuity, is not favoured by the Courts but where it is express and unequivocal, it will be duly enforced; whether it shall be satisfied by the lessors once renewing, or whether it shall amount to an engagement for a perpetual renewal, must depend on the words of the covenant. (r) Where the covenant was to grant such further lease as the lessee should desire under the same rents and covenants only as in the new lease; (s) and where the covenant was to execute one or more leases, under the same terms as the original lease, and so to continue the renewing of such lease or leases to the lessee or his assigns, it was held the covenants were for perpetual renewal. (t) In one case, the Court of King's Bench went so far as to hold that the circumstance of the lessor's having frequently renewed a lease, gave a construction to an equivocal covenant for a perpetual renewal, and bound him continually to renew. (u) But this decision has been generally condemned and appears now exploded.(v) In a late case, where a lease for twenty-one years contained a covenant by the lessor, at the expiration of eighteen (p) Ibid. (q) Loader v. Kemp, per Best, C. J. 2 C. & P. 375. (r) See Bac. Ab. Vol. 4. p. 229. (s) Bridges v. Hitchcock, 1 Brown's P. C. 522. (t) Furnival v. Crew, 3 Atk. 83. (u) Cook v. Booth, Cowp. 819. (v) Vide Baynham v. Guy's Hospital, 3 Ves. 295. Moore v. Foley, 6 Ves. 232, et vide Platt on Covenants, 242. years, to grant a new lease "with all covenants, grants, and articles contained in the original lease;" the Court of King's Bench held that this covenant was satisfied by the tender of a new lease containing all the former covenants, except the covenant for future renewal. And the judgment was affirmed in the Court of Exchequer Chamber upon writ of error. (w) Where the lessor in a lease for sixty-one years covenanted that at any time within one year after the expiration of twenty years of the said term, upon the request of the lessee, he would execute another lease of the premises for the further term of twenty years, to commence from the expiration of the said term of sixty-one years, and so in like manner at the end of every twenty years during the term of sixty-one years would execute a further term of twenty years, to commence from the expiration of the term last granted; the Court held that the lessee could not claim a further term of twenty years, at the expiration of the last twenty years in the lease, having omitted to claim a further term at the end of the first and second twenty years in the lease. (x) In a recent case, it was decided, on appeal to the House of Lords, that a covenant, from time to time, to renew and perfect such other further assurance, as the lessee, his executors, administrators, or assigns, with their counsel, learned in the law, should devise, advise, or require, for the better strengthening, confirming, and assuring, of all, and singular, the said demised and granted premises, unto the said lessee, his executors, administrators, and assigns, at such rents, and under such covenants and conditions as were contained in the said indenture of lease, at the charge of the lessee his executors, administrators, or assigns, was to be construed as (u) Iggulden v. May, 7 East, 237. 2 New Rep. 449. And see also 9 Ves. 325, and Lord Inchiquin v. Burnel, Hargr. Jur. Arg. 411. 229. 5. Covenant to pay taxes. a covenant for further assurance, and not for perpetual renewal. (y) A covenant for renewal is a covenant running with the land. (≈) V. The landlord is chargeable with the land-tax in respect of the rent; this the tenant is required and authorized in the first instance to pay, and then deduct it out of the rent; (a) but the landlord will be only chargeable in proportion to the quantum of rent he receives, and not according to the improved value. Therefore, where the landlord covenanted in the lease to pay the land-tax, and save the tenant harmless, and the premises were taxed at the rate of 150, per annnm, the landlord receiving only 120l. per annum, the Court held that the covenant was satisfied by the payment of the tax at the rate of 1207. (b) And where the lessor expressly covenanted to pay all taxes charged or to be charged upon or in respect of the demised piece of ground during the continuance of the term, and at the time when the lease was executed, the lessor gave a licence to the lessee to build on the land demised, and the lessee did build, and thereby increased the annual value of the premises; it was held that the landlord was liable, upon his covenant to pay the taxes, only in proportion to the rent reserved, and not to the improved value. (c) (y) Brown v. Tighe, 8 Bli. 272. N. S. 2 Cl. & Fin. 396. (z) Isteed v. Stoneley, 1 And. 82. Anon. Moore, 159. Roe dem. Bamford v. Hayley, 12 East, 469. See further as to the cases in which equity will grant a specific performance of a covenant to renew, and as to tenant-right of renewal, post, Book IV. (a) 38 Geo. III. c. 5, s. 17. The decisions on this section are commented upon infra. (b) Yaw v. Leman, 1 Wils. 21, And see Hyde v. Hill, 3 T. R. 377. Whitfield v. Brandwood, 2 Stark. 440, and Watson v. Atkins, 3 B. & A. 647. (c) Watson v. Horne, 7 B. & C. 285, and see Rex v. Scott, 3 T. R. 602. But in the same case, it was also held that the tenant having compounded for his taxes, under the provisions of a local act, and in consequence of such composition his premises being assessed at a less annual sum than the improved annual value; still that the tenant paid taxes in respect of the whole improved annual value, and that the landlord was to pay such proportion of the taxes as the rent bore to the full improved annual value. (d A covenant by the lessor to pay all taxes on the lands demised does not make him liable to the rates of the church and poor. (e) SECTION II. OF THE COVENANTS ON THE PART OF THE LESSEE. bound to cul mises. I. By the very relation of landlord and tenant the law The tenant is imposes an obligation on the lessee to treat the premises tivate and redemised in such a manner that no injury be done to the pair the preinheritance, but that the estate may revert to the lessor undeteriorated by the wilful or negligent conduct of the lessee. He is, therefore bound to keep the soil in a proper state of cultivation; to preserve the timber; and to support and repair the buildings. These duties fall upon him without any express covenant on his part; and a breach of them will, in general, render him liable to be punished for waste. (f) Waste is either voluntary, or permissive: the one an Waste. offence of commission; the other of omission. It may be incurred in respect of, 1. the soil; 2. the buildings; 3. the trees, fences, &c. ; 4. the live stock on the premises. (g) (d) Watson v. Horne, 7 B. & C. 285, and see Rex v. Scott, supra. (e) Theed v. Starkey, 8 Mod. 314. Rowls v. Gells, Cowp. 453. (f) Co. Lit. 53. a. And if a stranger enter and commit waste, the tenant will be liable to an ac- To the soil. To the buildings; 1. To dig and carry away the soil; to dig clay; to open mines, gravel pits, and the like, is voluntary waste. (h) As is also to change the face of the soil, by converting arable land into pasture, or pasture into arable; turning garden ground into tillage; sowing grain in hop-grounds; (i) ploughing up strawberry beds; (k) building a house upon the land; (7) and in short, in any manner essentially varying the quality of the soil, or the nature of its produce. But the offence consists in the first penetrating and opening the soil; therefore it is not waste to dig in mines or pits already open. (m) And if mines, &c., be expressly named in the demise, so as to shew an intention in the parties that the lessee shall have the benefit of their produce, it will not be waste in him to open them. (n) Where clay, marle, &c., is taken from the soil for the purpose of repairing the buildings, or improving the land, this will not be waste. (0) Nor is it waste to dig trenches for draining off the water. (p) If the tenant suffer the land to be surrounded or overflowed with water, through his negligence in permitting the embankments, &c., to fall into decay, he will be chargeable for permissive waste to the soil; but if the overflow be caused by tempest, he will not be answerable for such accident, unless he omit to repair the damage. (q) 2. Voluntary waste to buildings is the deliberately pulling (h) Co. Lit. 53. 5. Nowell v. Donning, 2 Rol. Abr. 816. 1. 15. Saunder's case, 5 Rep. 12. Manwood's case, Moore, 101. Moyle v. Moyle, Owen, 67. Astry v. Ballard, 2 Mod. 193. (i) Ibid. Tresham v. Lamme, 2 Rol. Abr. 814. 1. 50. Harrow School v. Alderton, 2 Bos. & Pul. 86. (k) Watherell v. Howells, 1 Camp. 227. (1) Co. Lit. 53. a. contr. Keilw. 38. b. Lord Darcy v. Askwith, Hob. 238. Cecil v. Caves, 2 Rol. Abr. 815. 1. 45. (m) Co. Lit. 53. b. Saunders's case, 5 Rep. 12. (n) Ibid. In Lord Rutland v. Gie, 1 Sid. 152. S. C. 1 Lev. 107, it is made a query whether a parson may dig mines in his glebe. (0) Co. Lit. 53. b. Moyle. Moyle, Owen, 67. Roll Abr. 816. (p) Altham's case, 2 Rol. Abr. 820. 1. 23. (q) Co. Lit 53. b. 2 Rol. Abr. 816. 1. 32, &c. Anon Moore, 62. Griffith's case, ibid. 69. Anon. ibid. 73. |