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v. John F. Wiessner Brewing Co. 88 For the reasons already stated Md. 234, 40 Atl. 877. The rule in the second of the three propositions its origin rested upon quite technical involved in this request could not be reasoning concerning the nonappor- given. As this erroneous propositionability of conditions. Dumpor's tion was incorporated with the two Case, supra. And see Gannett v. others in the general ruling asked Albree, 103 Mass. 372, 374. Al for, the failure to though the license to assign given give the ruling fur- Appeal-refusal the lessee in Dumpor's Case was a nishes no ground containing general permission to assign to any for exception. Gar- propositions. person, in both Brummell v. Mac- diner v. Brookline, pherson and Pennock v. Lyons the 181 Mass. 162, 63 N. E. 397; Demplessor's consent was to assign to sey v. Goldstein Bros. Amusement specified persons; and the rule was Co. 231 Mass. 461, 121 N. E. 429. nevertheless applied that the con- The exceptions to the admission sent discharged the condition. It is of evidence may be disposed of argued in the present case that it briefly. There was no error in permakes a difference that the cov- mitting the real estate agent, Allen, enant purports to bind the succes- who had a prospecsors in title of the lessee, while that tive purchaser for conduct showin Pennock v. Lyons was not broad the restaurant and ing breach of enough to cover assigns. But in cafeteria, provided both Dumpor's Case and Brummell he could have a lease, to testify that v. Macpherson the covenants ex- Putnam told him he had leased the pressly bound the lessee's assigns. premises to a druggist for $200 a The further possibility that the cov- month, and would not have a cafeenant might run with the land teria restaurant there. The talk ocagainst assigns, even though not curred in May, when the plaintiff named (see Spencer's Case, 5 Coke, claimed to hold as assignee of the 16a, 77 Eng. Reprint, 72; Woodfall, lease. This conversation, and that Land. & T. 16th ed. 175; 1 Tiffany, with Rosa Forfori, as to prospective Land. & T. § 152i), precludes any customers, tended to show a course feasibility of placing Pennock v. Lys of conduct on the part of the deons on any other than its obvious fendant, culminating in the notices ground-that Dumpor's Case is to quit, which interfered with the fully accepted law in this common plaintiff's rights as tenant under the wealth.
covenants of the lease. The testiA second exception was to the re- mony of the plaintiff that he infusal to rule "that under the fore- stalled Mrs. Forfori and her mother closure of mortgage given by Sam- to take charge of the property after uel Present, wherein he mortgaged the foreclosure sale, and that he furthe good will of the business carried nished some cash for the payment of on by him, that on foreclosure of the rent, was admissaid mortgage the good will did not sible at least carry with it an assignment of any show that the Forrights which said Present had un- foris, who had the active manageder the lease in issue, and that even ment, were in fact his agents. Furif said good will carried with it an ther, it does not appear that the assignment of said Present's rights substantial rights of
Appeal-erroin said lease, said assignment would the defendant were neous admission not be effective, but would be null injuriously affected nonprejudicial and void without the consent in thereby, as the tenwriting of the defendant, and that if ancy of the plaintiff was established the plaintiff was a tenant of the de- by the jury, and is not before us for fendant that he was only a tenant at review. will.”
Landlord's consent to one assignment or sublease as obviating necessity of
consent to subsequent assignment or sublease.
I. Introductory, 153.
a. In general, 153.
b. Qualified consent, 156. III. Consent to sublease, 157.
1. Introductory. As is indicated by the title, this annotation is designed to collect the cases dealing with the effect of the consent of a landlord to an assignment or sublease by his lessee, in contravention of a provision in the lease forbidding such assignment or sublease without his consent, as a complete waiver of that provision with respect to subsequent assignments or subleases, whether by the lessee, or his assignee or subtenant. Cases treating the right to reassign to the lessee are excluded, as are those cases dealing primarily with the waiver of restrictions as to the nature or character of the business for which the lease is assigned or sublet. II. Consent to assignment.
a. In general. The question as to effect to be given a consent by a lessor to an assignment by his lessee on the right to make subsequent assignments first arose in England in 1578. Dumpor's Case (1578) 4 Coke, 119b, 76 Eng. Reprint, 1110, 1 Smith, Lead. Cas. 11th ed. 32. In that case it was held that a condition in a lease that the lessee or his assigns should not alien without the special license of the lessors was determined by an alienation by license, so that no subsequent alienation was a breach of the condition. The ground of that decision was stated to be that, the lessors having licensed the lessee to alien, “they shall never defeat, by force of the said proviso, the term which is absolutely aliened by their license, inasmuch as the assignee has the same term which assigned by their assent; so if the lessors dispense with one alienation, they thereby dispense with all aliena
tions after; for, inasmuch as by force of the lessor's license, and of the lessee's assignment, the estate and interest of Tubbe [the first assignee] was absolute, it is not possible that his assignee, who has his estate and interest, shall be subject to the first condition."
Dumpor's Case followed in Brummell v. Macpherson (1807) 14 Ves. Jr. 173, 33 Eng. Reprint, 487, though the Lord Chancellor took occasion to say: "Though Dumpor's Case always struck me as extraordinary, it is the law of the land at this day."
The doctrine was recognized in Macher v. Foundling Hospital (1813) 1 Ves. & B. 188, 35 Eng. Reprint, 74, and was undoubtedly the law of England until it was eliminated from the body of English law by legislation (22 & 23 Vict. chap. 35, $$ 1-3) which provides that a licensee to do anything which would otherwise be a breach of a condition or covenant in a lease will extend only to the specific act licensed to be done.
A similar statute exists in the province of Ontario. See Baldwin v. Wanzer (1892) 22 Ont. Rep. 612.
Though it is no longer the law of England, the doctrine of Dumpor's Case has been frequently recognized in the United States, where it is generally held that, where there is a condition in a lease against the assignment of the term without the consent of the lessor, and such consent is given without any restrictions as to future assignments, the condition is waived altogether, and the assignee may reassign the term without the consent of the lessor. Chipman v. Emeric (1855) 5 Cal. 49, 63 Am. Dec. 80; German-American Sav. Bank V. Gollmer (1909) 155 Cal. 683, 24 L.R.A. (N.S.) 1066, 102 Pac. 932; Reid v. John F. Wiessner Brewing Co. (1898) 88 Md. 234, 40 Atl. 877; Pennock v. Lyons (1875) 118 Mass. 92; Siefke v. Koch (1866) 31 How. Pr. (N. Y.) 383;
Heeter v. Eckstein (1874) 50 How. Pr. (N. Y.) 445; Murray v. Harway (1874) 56 N. Y. 337; Conger v. Duryee (1882) 90 N. Y. 594; Fischer V. Ginzburg (1920) 191 App. Div. 418, 181 N. Y. Supp. 516; Easley Coal Co. v. Brush Creek Coal Co. (1922) 91 W. Va. 291, 112 S. E. 512. And see the reported case (ASTE v. PUTNAM'S HOTEL Co. ante, 149). See also McGlynn v. Moore (1864) 25 Cal. 384; Gannett v. Albree (1869) 103 Mass. 372; Storms v. Manhattan R. Co. (1902) 77 App. Div. 94, 79 N. Y. Supp. 60, affirmed in (1904) 178 N. Y. 493, 66 L.R.A. 625, 71 N. E. 3; Lynde v. Hough (1857) 27 Barb. (N. Y.) 415.
In Easley Coal Co. v. Brush Creek Coal Co. (1922) 91 W. Va. 291, 112 S. E. 512, it was said that, notwithstanding the fault found with the rule as laid down in Dumpor's Case, “it seems to be recognized as unimpeachable common law in all jurisdictions, and applied, in the absence of a statutory repeal or modification thereof, when the condition and the terms and provisions of the assignment and consent are such as make it applicable. Murray v. Harway (1874) 56 N. Y. 337; Dakin v. Williams (1837) 17 Wend. (N. Y.) 447; Wertheimer v. Hosmer (1890) 83 Mich. 56, 47 N. W. 47; German-American Sav. Bank v. Gollmer (1909) 155 Cal. 683, 24 L.R.A.(N.S.) 1066, 102 Pac. 932; Chipman v. Emeric (1855) 5 Cal. 49, 63 Am. Dec. 80; Randol v. Tatum (1893) 98 Cal. 390, 33 Pac. 433; Pennock v. Lyons (1875) 118 Mass. 92; Taylor, Land. & T. & 410; McAdam, Land. & T. § 241; 24 Cyc. 963; 16 R. C. L. p. 838; 18 Am. & Eng. Enc. Law, 662. There is an express recognition of it as law in McKildoe v. Darracott (1856) 13 Gratt. (Va.) 278. However much there might be an inclination to dissent from it as an original proposition, if any at all, it is so well fortified in precedents and judicial opinion that its genuineness cannot be judicially denied nor its consequences avoided. Being a part of the common law, it is made effective here by the Constitution, and, there being no repugnance between it and the constitutional provision, it must continue the law of the state until
altered or repealed by the legislature.''
Similarly, in Reid v. John F. Wiessner Brewing Co. (1898) 88 Md. 234, 40 Atl. 877, it was held that an assignment by the lessee, with the consent of the lessor, without the superaddition of a restriction on subsequent assignments, waived forever the condition requiring the consent of the lessor. The court said: “This principle was announced as early as the reign of Elizabeth, in Dumpor's Case (1578) 4 Coke, 119b, 76 Eng. Reprint, 1110. While Sir James Mansfield observed that the profession had always wondered at Dumpor's Case, still he held, in Doe ex dem. Boscawen V. Bliss (1813) 4 Taunt. 736, 128 Eng. Reprint, 520, that the decision had been law so many centuries that it could not be reversed. Later decisions have carried the doctrine even farther than as applied in Dumpor's Case, for it is held that, whether the license to assign be general, as in Dumpor's Case, or particular as 'to one particular person subject to the performance of the covenants in the original lease,' still the condition is gone in both instances, and the assignee may assign without license. Brummell v. Macpherson (1807) 14 Ves. Jr. 173, 33 Eng. Reprint, 487; Taylor, Land. & T. $ 410. The restriction having been waived by the lessor as to the assignment made by Miller, the lessee, the brewing company was not bound by that restrictive covenant, and consequently no assent on the part of the lessor to the assignment by the brewing company to Jones was necessary; and, such assent not being necessary, the assignment made without it was perfectly valid.
The replication, then, in setting up the want of such assent, when no assent was requisite, was clearly bad, and the demurrer to it was properly sustained.”
The rule was stated in GermanAmerican Sav. Bank v. Gollmer (1909) 155 Cal. 683, 24 L.R.A.(N.S.) 1066, 102 Pac. 932, as follows: "The assignee of a leasehold estate takes it subject to all the obligations imposed by the lease, except that, where there is a condition against assignment without
consent (which is necessarily single in its nature), such condition is wholly discharged by the consent or waiver.”
The fact that the consent is given to assign to a specified person does not alter the rule. Pennock v. Lyons (1875) 118 Mass. 92; Brummell v. Macpherson (1807) 14 Ves. Jr. 173, 33 Eng. Reprint, 487.
And see the reported case (ASTE v. PUTMAN'S HOTEL Co. ante, 149).
The rule is applicable notwithstanding that the lease was assigned with all its covenants, terms, and conditions. Reid v. John F. Wiessner Brewing Co. (1898) 88 Md. 234, 40 Atl. 877.
Assumption of, and agreement faithfully to fulfil, on the part of an assignee, all of the terms and conditions of a lease containing a condition or covenant against assignment thereof by the lessee, in a deed of assignment thereof, to which the lessee and assignee only are formal parties, in which the lessor joins only for the purpose of assenting to the assignment made by the lessee, and in which there is not-anywhere, or in any form -a specific inhibition of further assignment, or one arising by necessary implication, do not save to the lessor the benefit of such condition or covenant; nor do they, together with a stipulation that the lease is to be a part of the deed, and recitals of the condition or covenant, and of purpose, in the making of the lease, to have it assigned to a person of the character of the assignee, effect such saving; and the assignee may assign the term, in whole or in part, without the consent of the lessor. Easley Coal Co. v. Brush Creek Coal Co. (1922) 91 W. Va. 291, 112 S. E. 512.
It has also en held that a covenant against assignments is wholly discharged where a forfeiture arising from an assignment without consent is waived by the lessor. GermanAmerican Sav. Bank v. Gollmer (1909) 155 Cal. 683, 24 L.R.A. (N.S.) 1066, 102 Pac. 932; Murray v. Harway (1874) 56 N. Y. 337; Heeter v. Eckstein (1874) 50 How. Pr. (N. Y.) 445; Fischer v. Ginzburg (1920) 191 App. Div. 418, 181 N. Y. Supp. 516.
In Heeter V. Eckstein (1874) 50
How. Pr. (N. Y.) 445, it was said: “The principle is perfectly well settled that, where there is a covenant in a lease not to assign, and an assignment is made of the whole term by the lessee, if the landlord desires to take advantage of the breach of the covenant he must re-enter. If he accepts rent from the assignee of the lease, the assignee becomes his tenant, and he takes the leasehold freed from the covenant not to assign.”
In Murray v. Harway (1874) 56 N. Y. 337, the rule that consent by the lessor to an assignment dispenses with the condition in the lease requiring such consent forever, was applicable, where the lessor had waived the condition by accepting rent from the first assignee without his consent, and consequently such assignee could assign without the lessor's consent.
Where a lease contains a provision prohibiting the assignment or subletting of the premises by the lessee, his heirs or assigns, an assignee taking from the lessee is bound by the provisions of the original lease, and the fact that the agreement giving consent to the assignment by the lessee does not contain a stipulation against further assignments without the consent of the lessor does not entitle the lessee's assignee to assign without such consent, he being bound by the provisions of the original lease. Hartford Deposit Co. v. Rosenthal (1915) 192 Ill. App. 211, wherein it was said: "The contention of the appellants is that when the complainant consented in writing to a sublease by the Stillson Company to the Rosenthals and Dale of the stores 59 and 61 West Madison street, for a men's clothing business, without, in the written consent, creating any further restriction, the restriction in the head lease was forever removed, and a subsequent lease by the subtenants of a portion of the premises, without the original lessor's consent, is valid. In support of this contention counsel rely on Dumpor's Case (1813) 4 Coke, 119b, 76 Eng. Reprint, 1110; 1 Smith's Lead. Cas. 9th Am. ed. 119. We do not think that this case is within the rule in Dumpor's Case. In that case the
provision of the lease was that the by his lessee expressly stipulated lessee or his assigns should not that such consent should not be alien the premises to any persons with- treated as waiving in any way any out the special license of the lessors. of the provisions of the original During the term the lessors, by deed, lease, and that the lease should not licensed the lessee 'to alien or de- be assigned or transferred by the mise the land, or any part of it, to assignee without the consent of the any person or persons whatsoever.' lessor, and then only under the condiAfterwards the lessee assigned his tions as to extra payments as set lease to Tubbe, and it was held out in the original lease, it was held that the alienation to Tubbe had de- that the consent was limited and qualitermined the condition against aliena- fied by its terms, which expressly aption, and no alienation which Tubbe plied to the assignee. Rothrock v. might thereafter make could break Sanborn (1918) 178 Cal. 693, 174 Pac. the condition. In Dumpor's Case the 314. condition was single, and not sus- In Kew v. Trainor (1894) 150 III. ceptible of more than one breach. The 150, 37 N. E. 223, affirming (1893) 50 proviso was that the lessee or his as- Ill. App. 629, wherein it appeared that signs should not alien to any person the lease contained a covenant that the or persons without the special license lessee, or his legal representatives, of the lessors, and the lessors after- would not underlet the premises withwards licensed the lessee to alien the out the written consent of the lessor, land to any person or persons. Here and a further provision for forfeiture the license was expressly to Stillson's in case of default in any of the coveRestaurant & Buffet Company, and on nants, and the lessor gave his consent the condition that ‘no further assign- to the assignment of the lease to a ment of said lease, and no subletting certain person on the express condiof the premises, or any part thereof, tion that no further assignment of said shall be made without the written lease or subletting of the premises consent of said Hartford Deposit should be made without his written Company.' Kew v. Trainor (1894) consent, it was held that the lessor 150 Ill. 150, 37 N. E. 223; Kales, might enforce a forfeiture, where such Future Interests, $ 63, p. 81. The assignee assigned to another person second clause of the head lease without the lessor's consent. The contains a definite agreement that court distinguished Dumpor's Case neither lessees nor others having (1578) 4 Coke, 119b, 76 Eng. Reprint, the lessees' estate in the premises' 1110, supra,
follows: "In the shall assign, sublet, or use, or permit Dumpor Case it was held that a conthe premises to be used, for any pur
dition not to alien without license is pose than as specified in the lease, determined by the first license grantwithout the written consent of the ed. But the provision against the aslessor. An assignee or subtenant is signment, in that case, was entirely bound by any restrictions in the chain different from the clause in the conof title above him, relating to assign- tract under consideration. There the ments or subleasing, and the landlord
proviso was that the lessee or his ashas the same remedy in equity against signs should not alien to any person the subtenant as against any other
or persons without the special license purchaser with notice."
of the lessors, and the lessors afterb. Qualified consent.
wards licensed the lessee to alien the The lessor may save a condition land to any person or persons. Here against assigning without his consent, the license to assign was expressly by expressly stipulating in the agree- limited to a particular person, ment permitting the first assignment and on the condition that no further that no further assignment shall be assignment of the lease should be made without his consent. Thus,
made without the written assent of where the agreement embodying the the lessor, and, in addition,
.. the consent of the lessor to an assignment assignee covenanted that on consid