it. A lessee covenanted that neither he nor his executors nor assigns would alien without consent except to his wife; the executors after the death of lessee aliened to the wife, and it was thought that she might alien without consent; for it could not be intended that she was within the word assigns', for she could not alien to herself.1 And we find this statement "The case upon special ver It is now, and has long been, the understanding of the profession that a devise is not a breach of a covenant or proviso not to assign or demise without a licence. But to this general understanding, which is of great weight, we must oppose the following authorities. It is expressly laid down in Sheppard's Touchstone,3 and it is singular the passage has never been referred to, that "if a lease for years be made on condition that the lessee shall not assign, or alien the term or the land during his life without the licence of the lessor, and the lessee doth give it by his will without licence, this is a breach of the condition, and forfeiture of the estate. But if he make an executor of his will only, this is no breach." supported by a solemn decision. dict was, a lease was made to Giles Taunton for eighty years, upon condition, that if he, his executors or assigns do demise the lands for more than from year to year, that then the lease shall cease and be void. G. T. doth devise it to his son, and dieth, the son enters by the assent of the executors, the question was, if the condition be broken, for the devise is not properly a demise. But all the justices held it a breach; for a condition shall not be taken so strictly, that it shall be according to the precise words; and if the meaning be broken, it is a breach of the condition; and none will deny but a grant of all his estate had been a breach; so it is here of a devise and it was so adjudged." And in support of this doctrine we find several dicta.5 But if a devise be not a breach of condition against alienation, it might be said that the device is 1 Cro. Eliz. 757. See Lloyd v. Crispe, 5 Taunt. 249. 2 Dictum in Fox v. Swann, Style, 483. 3 Wils. C. P. 237. 3 Mau. & Sel. 361. 12 Ves. 395. 1 Russ. 349. 3 P. 144. 4 Berry v. Taunton, Cro. Eliz. 331. See Judgment of Sir W. Grant, M. R. in Greenaway v. Adams, 12 Ves, 395. 5 See in Knight v. Mory, Cro. Eliz. 60,; and in Dumpor's Case, ibid. 816. lawfully in and may alien without consent. But the contrary. has been assumed as clear.1 The reason why a devisee or legatee cannot alien without consent may be said to be because he is within the word assigns, and the lessee, his executors, administrators and assigns are assumed to have been restrained. But if the lessee, or the lessee and his executors or administrators only, are restrained, then it seems that a devisee would not be restrained (assuming that a devise is not a breach). This appears to have been overlooked in Greenaway v. Adams. If the same person be both legatee of a term and executor, which is a very common case, it depends upon his acts and declarations, and also, in some cases, upon the fact whether the debts of the testator are paid, whether he, the legatee takes as legatee or executor.3 2. Cases in which there was a deficiency of expression as to the tenements or the estate or interest not to be aliened. We have seen that no person legally possessed of a term of years is prevented from aliening the same, unless he be restrained by express words in the demise thereof; so he is not restrained from parting with his interest in any way which is not expressly prohibited. A lessee covenanted not to "assign, transfer and set over, or otherwise do or put away the present indenture of demise or the premises thereby demised, or any part thereof:" it was holden that this covenant was not broken by an underlease, and the decision has been ever since quoted as an undoubted authority. It was reasonable enough to say that an underlease was not met by the words "assign, transfer and set over," but the rejection of those which follow, "or otherwise put away," strongly shows the precision required. The court after consideration construed "putting away" as meaning some mode of assignment, an absolute putting away. It should be observed that in Pennant's case, an underlease was held to be restrained by the words "grant, alien, or assign," 4 1 Greenaway v. Adams, 12 Ves. 395. Maule v. Duke of Beaufort, 1 Russ. 349. 212 Ves. 395. Dyer, 367. a. pl. 39. Shep. Touch. 454. 6 T. R. 298. 1 Bos. & Pul. 310. Pannel v. Fenn, Cro. Eliz. 347. Portman v. Wills, Cro. Eliz. 386. Ibid. 816. 4 Crusoe v. Bugby, 3 Wils. 234. 5 3 Rep. 64. but the point was not then discussed, and the case has never been referred to as authority on the subject. A covenant not to assign or otherwise part with the premises for the whole or any part of the term, is broken by an underlease.1 So where it was provided that a lessee should not "demise, lease, grant, or let the premises, or any part thereof, or convey, alien, assign, or set over the indenture or his or their estate therein, or any part thereof, for all or any part of the term," and the lessee let a person into possession of part of the premises to quit on three months' notice, and occupied the remainder as a shop in partnership with the same person, it was held that such dealing with the premises was prohibited. Lessee covenanted not to “grant any underlease or leases for any term or terms whatsoever, or let, assign, transfer, set over, or otherwise part with the premises, or his term or interest therein or any part thereof;" it was proved that a clerk in the Post-office had lodged above a twelvemonth in a room in the house demised, but Lord Ellenborough said, --"The covenant can only extend to such underletting as a licence might be expected to be applied for; and who ever heard of a license from a landlord to take in a lodger ?"3 2 But where a lessee covenanted not to "let, set or demise the premises or any part thereof, for all or any part of the term," it was held he could not assign them.” A lessee covenanted not to "grant any underlease or leases for any term or terms whatsoever, or let, set, or assign, transfer, set over, or otherwise part with the premises or the present indenture of lease, or his or their term or interest by that indenture granted, or any part thereof;" the lessee deposited the lease with a creditor as a security for money advanced. Abbott C. J. was of opinion at nisi prius, and his opinion was afterwards confirmed by the court, that the delivery of the lease to the creditor as a security for the payment of money advanced by them, was not such a "parting with" as to work a forfeiture.5 The principle of this decision is very important, for it in fact decides that an assignment or demise by way of mortgage, is not restrained by a covenant not to Doe v. Worsley, 1 Camp. 20. 3 Doe v. Laming, 4 Camp. 77. VOL. VII. 2 Roe v. Sales, 1 Mau. & Sel. 297. H assign or demise the whole or any part of the premises; but it is probable that a mortgage would be held to be within a restraint not to grant his interest in the term, or any part thereof. And it should be observed, that Lord Kenyon said, obiter indeed, that a mortgage was a breach of a covenant not to assign.1 If a tenant is merely restrained from assigning or demising, he may without incurring any forfeiture, part with the possession under an agreement; so a covenant not to assign the demised premises, does not prevent an assignment of part. 3. Cases in which the object of the clause has been defeated, through the act of the lessor himself and his ignorance of its nature. A lease was made with a proviso, that the lessee or his assigns should not alien the premises to any person or persons without the special license of the lessors. Afterwards the lessors licensed the lessee to alien to any person or persons whatsoever; the lessee aliened to one Tubbe. Tubbe aliened without consent, and the question was, whether it were a breach of the condition. It was resolved, "that the alienation by license to Tubbe had determined the condition, so that no alienation which he might afterwards make could break the proviso, or give cause of entry to the lessors, for the lessors could not dispense with an alienation for one time, and that the same estate should remain subject to the proviso after. And although the proviso be, that the lessee or his assigns shall not alien, yet when the lessors license the lessee to alien, they shall never defeat by force of the said proviso the term which is absolutely aliened by their license, in as much as the assignee has the same term which was assigned by their assent; so if the lessors dispense with one alienation, they thereby dispense with all alienations after; for as in as much as by force of the lessor's license and of the lessee's assignment, the estate and interest of Tubbe was absolute; it is not possible that his assignee who has his estate and interest shall be subject to the first condition.3 And in another report of the 1 8 T. R. 301. 2 Dicta per Lord Eldon in Church v. Brown, 15 Ves. 265. 3 Dumpor's Case, 4 Rep. 119. b. same case,1 it is said that Gawdy, Clinch, and Popham, delivered their opinion severally, that the condition was gone and discharged by this dispensation to alien to the lessee himself; for the condition being once dispensed with, it is utterly determined; for it cannot be discharged for a time, and in esse again afterwards. The decision has often been recognised as law, but generally with disapprobation; it seems, indeed, to have been viewed in rather a mysterious light. It has been represented somewhat in this way,—a condition is a metaphysical and indivisible thing, and if once blown upon, vanishes into thin air and is for ever gone; by no legal subtilty can it be dealt with, and yet preserved; it "must exist entire or not exist at all." We confess we have some doubt, whether the learned judges who decided Dumpor's case, and the still more learned person who has reported it, had any idea of grounding the decision in so fine a doctrine. We think Sir Edward Coke's version of the judgment amounts to this;-a proviso against alienation is a mere personal contract between the lessor and lessee, and annexed by them as a collateral thing to the estate granted; it is not incident to such estate, and has no natural connexion with it: it is as it were a leading-string, which the lessor holds to prevent the lessee escaping with the estate; but if the lessor thinks fit, he may throw up the string and allow the lessee to ride off whither he will. If the lessee get his exeat, he may dismount and give his steed to A or to B, or to C. And why should A or B, or C, when he may ride at large, go to the lessor and beg him to put the leading-string on again? Our ancestors understood the advantages of freedom both in persons and in property better. No, said Sir Edward Coke, " in as much as by force of the lessor's licence, by his giving up the string, and of the lessee's assignment, the estate of Master Tubbe was an absolute fermehold; IT IS NOT POSSIBLE that Master Tubbe's assignee who has his estate and freedom shall be subject to the lessor's leading-string." Lord Eldon rightly decided that it is quite immaterial, when the lessor gives up the string, whether he does so that the lessee may set up a person named by him the lessor, or any person whom he the lessee may choose.3 In 1 Dumpor v. Syms, Cro. Eliz. 815. 3 Brummel v. Macpherson, 14 Ves. 173. 2. Verba Gibbs, J. 5 Taunt. 254. |