v. John F. Wiessner Brewing Co. 88 Md. 234, 40 Atl. 877. The rule in its origin rested upon quite technical reasoning concerning the nonapportionability of conditions. Dumpor's Case, supra. And see Gannett v. Albree, 103 Mass. 372, 374. Although the license to assign given the lessee in Dumpor's Case was a general permission to assign to any person, in both Brummell v. Macpherson and Pennock v. Lyons the lessor's consent was to assign to specified persons; and the rule was nevertheless applied that the consent discharged the condition. It is argued in the present case that it makes a difference that the covenant purports to bind the successors in title of the lessee, while that in Pennock v. Lyons was not broad enough to cover assigns. But in But in both Dumpor's Case and Brummell v. Macpherson the covenants expressly bound the lessee's assigns. The further possibility that the covenant might run with the land against assigns, even though not named (see Spencer's Case, 5 Coke, 16a, 77 Eng. Reprint, 72; Woodfall, Land. & T. 16th ed. 175; 1 Tiffany, Land. & T. § 152i), precludes any feasibility of placing Pennock v. Lyons on any other than its obvious ground-that Dumpor's Case is fully accepted law in this commonwealth.

A second exception was to the refusal to rule "that under the foreclosure of mortgage given by Samuel Present, wherein he mortgaged the good will of the business carried on by him, that on foreclosure of said mortgage the good will did not. carry with it an assignment of any rights which said Present had under the lease in issue, and that even if said good will carried with it an assignment of said Present's rights in said lease, said assignment would not be effective, but would be null and void without the consent in writing of the defendant, and that if the plaintiff was a tenant of the defendant that he was only a tenant at will."

181 Mass. 162, 63 N. E. 397; Dempsey v. Goldstein Bros. Amusement Co. 231 Mass. 461, 121 N. E. 429.

The exceptions to the admission of evidence may be disposed of briefly. There was no error in permitting the real estate agent, Allen, who had a prospec- Evidencetive purchaser for conduct showthe restaurant and ing breach of cafeteria, provided

contract.

he could have a lease, to testify that Putnam told him he had leased the premises to a druggist for $200 a month, and would not have a cafeteria restaurant there. The talk occurred in May, when the plaintiff claimed to hold as assignee of the lease. This conversation, and that with Rosa Forfori, as to prospective customers, tended to show a course of conduct on the part of the defendant, culminating in the notices to quit, which interfered with the plaintiff's rights as tenant under the covenants of the lease. The testimony of the plaintiff that he installed Mrs. Forfori and her mother to take charge of the property after the foreclosure sale, and that he furnished some cash for the payment of the rent, was admissible at least to agency. show that the Forforis, who had the active management, were in fact his agents. Further, it does not appear that the substantial rights of Appeal-errothe defendant were neous admission injuriously affected nonprejudicial thereby, as the ten- error.

-to show

of evidence

ancy of the plaintiff was established by the jury, and is not before us for review.

Exceptions overruled.

I. Introductory, 153.

II. Consent to assignment: a. In general, 153.

b. Qualified consent, 156. III. Consent to sublease, 157.

I. 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 was 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 was 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 been 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 lessee or his assigns should not alien the premises to any persons without the special license of the lessors. During the term the lessors, by deed, licensed the lessee 'to alien or deImise the land, or any part of it, to any person or persons whatsoever.' Afterwards the lessee assigned his lease to Tubbe, and it was held that the alienation to Tubbe had determined the condition against alienation, and no alienation which Tubbe might thereafter make could break the condition. In Dumpor's Case the condition was single, and not susceptible of more than one breach. The proviso was that the lessee or his assigns should not alien to any person or persons without the special license of the lessors, and the lessors afterwards licensed the lessee to alien the land to any person or persons. Here the license was expressly to Stillson's Restaurant & Buffet Company, and on the condition that 'no further assignment of said lease, and no subletting of the premises, or any part thereof, shall be made without the written consent of said Hartford Deposit Company.' Kew v. Trainor (1894) 150 Ill. 150, 37 N. E. 223; Kales, Future Interests, § 63, p. 81. The second clause of the head lease contains a definite agreement that neither 'lessees nor others having the lessees' estate in the premises' shall assign, sublet, or use, or permit the premises to be used, for any purpose than as specified in the lease, without the written consent of the lessor. An assignee or subtenant is bound by any restrictions in the chain of title above him, relating to assignments or subleasing, and the landlord has the same remedy in equity against the subtenant as against any other purchaser with notice."

b. Qualified consent.

The lessor may save a condition against assigning without his consent, by expressly stipulating in the agreement permitting the first assignment that no further assignment shall be made without his consent. Thus, where the agreement embodying the consent of the lessor to an assignment

by his lessee expressly stipulated that such consent should not be treated as waiving in any way any of the provisions of the original lease, and that the lease should not be assigned or transferred by the assignee without the consent of the lessor, and then only under the conditions as to extra payments as set out in the original lease, it was held that the consent was limited and qualified by its terms, which expressly applied to the assignee. Rothrock v. Sanborn (1918) 178 Cal. 693, 174 Pac. 314.

In Kew v. Trainor (1894) 150 III. 150, 37 N. E. 223, affirming (1893) 50 Ill. App. 629, wherein it appeared that the lease contained a covenant that the lessee, or his legal representatives, would not underlet the premises without the written consent of the lessor, and a further provision for forfeiture in case of default in any of the covenants, and the lessor gave his consent to the assignment of the lease to a certain person on the express condition that no further assignment of said lease or subletting of the premises should be made without his written consent, it was held that the lessor might enforce a forfeiture, where such assignee assigned to another person without the lessor's consent. The court distinguished Dumpor's Case (1578) 4 Coke, 119b, 76 Eng. Reprint, 1110, supra, as follows: "In the Dumpor Case it was held that a condition not to alien without license is determined by the first license granted. But the provision against the assignment, in that case, was entirely different from the clause in the contract under consideration. There the proviso was that the lessee or his assigns should not alien to any person or persons without the special license of the lessors, and the lessors afterwards licensed the lessee to alien the land to any person or persons. Here the license to assign was expressly limited to a particular person,

and on the condition that no further assignment of the lease should be made without the written assent of the lessor, and, in addition, . . . the assignee covenanted that on consid