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eration of the license he would perform all the covenants and conditions of the original lease, to be kept and performed by the lessee. There is such a wide difference between the case cited and the case under consideration that we do not regard the former case one which should control here, even if we were inclined to follow the Dumpor Case. We perceive no reason why the rule that a license once granted removes the condition may not be controlled by the contract of the parties. The stipulations in the first assignment are plain, and we see no reason why they did not carry with them the provisions for re-entry, contained in the lease, for a violation of its provisions."
The rule was stated in Springer v. Chicago Real Estate Loan & T. Co. (1903) 202 Ill. 17, 66 N. E. 850, as follows: "The assent declared that the assignment should be subject to each and every covenant, condition, and provision of the lease, and expressly provided that no further assignment of the said lease shall be made without written consent,' and the law has no arbitrary rule that, under an assent so conditioned, the assignee who has accepted such assent and enters into possession thereunder is discharged from the condition of the lease and the assent, and may assign the lease at will."
Where the lessor, in consenting to an assignment by the lessee, agrees to consent to further assignment by the assignee, but on the condition that the proposed transferee must be a responsible person and one acceptable to the lessor, the assignor cannot transfer the lease without the approval of the transferee by the lessor. Adams v. Shirk (1901) 43 C. C. A. 407, 104 Fed. 54, rehearing denied in (1901) 44 C. C. A. 653, 105 Fed. 659.
III. Consent to sublease. The rule extending the consent of the landlord to an assignment of the lease to subsequent assignments has been held to be inapplicable to a provision against underletting or subleasing without consent. Seaver v. Coburn (1852) 10 Cush. (Mass.) 324; Miller v. Newton-Humphreville Co. (1920)
N. J. Eq.
- 116 Atl. 325; Heeter v. Eckstein (1874) 50 How. Pr. (N. Y.) 445; Conger v. Duryee (1882) 90 N. Y. 594; Fidelity Trust Co. v. Kohn (1904) 27 Pa. Super. Ct. 374; Albig v. Norton (1905) 33 Pa. Co. Ct. 93; Farr v. Kenyon (1898) 20 R. I. 376, 39 Atl. 241; McKildoe v. Darracott (1856) 13 Gratt. (Va.) 278; Doe ex dem. Griffith v. Pritchard (1833) 5 Barn. & Ad. 781, 110 Eng. Reprint, 979, 2 Nev. & M. 489, 3 L. J. K. B. N. S. 11. See also Bleecker v. Smith (1835) 13 Wend. (N. Y.) 530, and West Shore R. Co. v. Wenner (1903) 70 N. J. L. 233, 103 Am. St. Rep. 801, 57 Atl. 408, 1 Ann. Cas. 790, affirmed in (1905) 71 N. J. L. 682, 60 Atl. 1134.
The rule as to subletting was stated in Fidelity Trust Co. v. Kohn (1904) 27 Pa. Super. Ct. 374, as follows: “A condition against underletting, though held by some authorities not to be strictly continuous, is not a single condition, since it is susceptible of more than one breach during the term; hence, a lessor who has a right of reentry in the breach of a covenant not to underlet does not, by waiving his right on one underletting, lose his right to re-enter on a subsequent underletting. Doe ex dem. Boscawen v. Bliss (1813) 4 Taunt. 735, 128 Eng. Reprint, 519; Taylor, Land. & T. 6th ed. $$ 412, 501; Jackson & G. Land & T. $ 358, p. 217; 18 Am. & Eng. Enc. Law, 2d ed. 384. The evidence discloses nothing which would take this case out of the general rule above stated. So, also, it has been held that a consent by a lessor that a third party may occupy the leased premises for a specified business, under the lessee who is to be responsible for the rent, is a restrictive waiver of conditions not to sublet or carry on any other than the kind of business to which the lessee is restricted by the lease, and applies only to such third persons and to his specified business. Wertheimer v. Hosmer (1890) 83 Mich. 56, 47 N. W. 47. Whether the second subletting be regarded as within this principle, or as being a breach of the covenant which was waived by the subsequent acceptance of rent, the result is the same. This did not amount to a waiver
of the condition against subletting, as premises, regarding such subletting as the appellant's counsel argue, but a continuing condition of the lease, only of that breach. The condition which is not extinguished by a single remained; and the defendants were consent. Gear, Land. & T. p. 285; not justified in assuming that a sub- Taylor, Land. & T. [ 501. The true sequent breach, by subletting another rule applicable to the present situapart of the premises to another sub- tion is stated in 18 Am, & Eng. Enc. tenant, no matter who he might be, Law, at page 681, as follows: 'If the would be waived."
lessor consents to a subletting, the The difference between an assign- sublease is, of course, valid, though ment and a subletting, with respect the lease expressly forbids all subto the rule in Dumpor's Case, was letting; but the consent of the lessor stated in McKildoe Darracott to one subletting, or the waiver of one (1856) 13 Gratt. (Va.) 278, as follows: breach of the covenant against sub“The only difference between an as- letting, is no defense to a breach of signment and an underlease, in this the covenant by another and distinct respect, is that the doctrine in Dum- sublease.' And this, I think, must be por's Case (1578) 4 Coke, 119, 76 Eng. the rule to be followed in a case where, Reprint, 1110, in regard to assignments, as here, the parties have expressly has not been extended to underleases. agreed that all the terms of the lease, It was held in that case that a license including the provision against subto assign any part is a dispensation letting, are made a condition of the of the whole condition, and the lessee consent to the present subletting; for, or his assigns may assign all the resi- by this provision of the agreement, due without license. Whereas it has the original lease became a part of been since held that a lessor who has the contract to sublet." a right of re-entry on a breach of cove- In Wertheimer v. Hosmer (Mich.) nant not to underlet does not, by supra, it was held that consent by the waiving his entry on one underletting, lessor that a third person might ocwaive his right to re-enter on a subse- cupy the leased premises under the quent underletting. Doe ex dem. lessee for a specified business was opBoscawen v. Bliss (1813) 4 Taunt. erative only pro tanto, on the condition 735, 128 Eng. Reprint, 519, Archbold, against subletting, or carrying on of 97. In the former case, the waiver is other than certain business. The of the condition itself. In the latter, court said: “A covenant not to assign only of the forfeiture for a particular or underlet the leased premises withbreach. But, in the latter, each breach out the assent of the lessor is freis a complete, and not a continuing, quently inserted in a lease, and is act of forfeiture."
regarded as a fair and reasonable In Miller v. Newton-Humphreville covenant. But a license once given reCo. (1920) N. J. Eq.
- 116 Atl. moves the restriction forever, as the 325, it was contended that the consent condition is treated as entire, and by the lessor to the subletting in one therefore not capable of being waived instance, in effect, removed the provi- or released as to part; but in order sion in the lease requiring the lessor's to have that effect it must be such a consent. The court, however, pointed license as is contemplated in the lease; out that the rule relied on was limited that is, if the lease provides that the to assignments, and did not apply to license shall be in writing, an oral subleases. On this point it was said: license is not good. It is not to be un"A distinction has almost uniformly derstood, however, that this written been drawn by the courts, in the appli- stipulation not to sublet, unless by cation of this rule, between an assign- consent of the lessor in writing, may ment of the lease and a subletting, not be waived by an oral agreement; and .. the unsatisfactory rule and such is not the contention of the of Dumpor's Case has been limited to counsel for the complainants here. assignments of the lease, and has not The agreement to waive the condition been extended to a subletting of the as to Sprague, however, was not a waiver of the condition in the lease the one case the landlord could not, as to other parties, or for the carrying if he wished, maintain an action for on of other business not contemplated rent against an undertenant, whereas by the lease, or the business to be car- against an assignee of a lease such an ried on by Sprague. The consent that action by the landlord will lie. In the Sprague might enter and conduct the case of an assignment of a lease, no business of selling small musical in- part of the estate ever reverts back to struments and sheet music was a re- the original lessee, whereas, in the strictive waiver of the condition, and case of an underletting, at the expiraapplied only to Sprague and the busi- tion of the term the whole estate reness to be carried on by him. It gave verts to the original lessee, and he Michell [the tenant] no right to lease takes it again subject to the covenant. to any other party, or to carry on a All of the cases which the counsel for different business; and Sprague cer- the plaintiff has cited to show that the tainly could gain no greater rights acceptance of rent after breach of a than Michell had. The terms of the covenant is not tantamount to a lilease were not waived, but a license cense, but for any subsequent undergiven to Sprague to enter and carry letting the landlord may re-enter, are on that particular business, Michell cases underletting only, and not cases to be holden for the rent. Sprague of assignment." had no right to sublet, and Michell In German-American Sav. Bank v. had no right to sublet, to anyone but Gollmer (1909) 155 Cal. 683, 24 L.R.A. Sprague, and for that particular busi- (N.S.) 1066, 102 Pac, 932, it was said: ness."
"Where the conditions are continuing In Doe ex dem. Boscawen v. Bliss in their nature, such as covenants for (Eng.) supra, while the court did not the payment of rent at stated interspecifically distinguish between an as- vals, or for the carrying on of only signment and a sublease, it was held certain kinds of business in the dethat a lessor does not, by waiving his mised premises, or against subletting right of re-entry on one underletting, without written consent, the consent lose his right to re-enter on a subse- to, or waiver of, a breach, does not quent underletting, the court stating preclude the right of the lessor to that the rule in Dumpor's Case did
proceed against the lessee for subsenot apply.
quent breaches." In Heeter V. Eckstein (1874) 50
In Dreyfuss v. Process Oil & Fuel How. Pr. (N. Y.) 445, which was a
Co. (1917) 142 La. 564, 77 So. 283, case of assignment, it was insisted
it was held, without discussion of the that the rule governing underletting
operation of a consent to sublet as was applicable to consent to an assignment. This the court denied, and
an abrogation of the provision requirstated the difference between under
ing consent, that the consent given a letting and assignment as follows: lessee to sublet the ground floor of the "In the one case the lessee still re- premises for a certain business did not mains the owner of the leasehold include a consent to sublet to the premises, and in the other he parts same person an upper floor for resiwith his whole interest or estate. In dential purposes.
HARRY L. SCHORNICK, Appt.,
Arizona Supreme Court November 21, 1923.
(Ariz. - 220 Pac. 397.) Witness privileged communication
physician right of heir to waive. 1. Where the statute permits one making confidential communica
tions to a physician to waive the privilege of excluding his testimony as to such communication, the privilege may be waived by the heir of such person.
[See note on this question beginning on page 167.] - effect of fact that physician was statement of intention to control child of patient.
property — effect, 2. That the attending physician se- 4. That a grantor states, as a reacuring information from his patient son for inserting a condition in a deed was his son does not alter the rule that it should not be recorded until that the privilege of excluding evi- after his death, that he expects to condence of the communication may be trol his property so long as he lives, waived by the patient's heirs.
will not prevent the delivery of the Deed condition against recording
deed from passing the title. effect.
- conveyance to take effect after
death. 3. A condition in a deed that it shall
5. Under a statute providing that not be recorded until after the death
an estate of freehold may be made to of the grantor, and that record before
commence in the future by deed in like such death will nullify the deed, is a
manner as by will, delivery of a deed condition subsequent which will not
to take effect after grantor's death is prevent the title passing when the
good. deed is delivered.
[See 8 R. C. L. 1065; 4 R. C. L. Supp. [See note in 11 A.L.R. 23.]
588. See also note in 11 A.L.R. 23.]
APPEAL by plaintiff from a judgment of the Superior Court for Maricopa County (Jenckes, J.) dismissing a complaint filed to set aside a deed. Reversed.
The facts are stated in the opinion of the court.
Messrs. Silverthorn & Van Spanck- N. W. 1005; Storrs v. Scougale, 48 Mich. eren and W. E. Ryan for appellant. 387, 12 N. W. 502; Auld v. Cathro,
Messrs. Alexander & Christy, for 20 N. D. 461, 32 L.R.A. (N.S.) 71, appellee:
128 N. W. 1025, Ann. Cas. 1913A, 90; The privilege of a patient as to Re Hunt, 122 Wis. 460, 100 N. W. 874; knowledge and information of a physi- Manufacturers' L. Ins. Co. v. Brennan, cian gained while in attendance upon 270 Fed. 173; Arizona & N. M. R. Co. such patient cannot be waived by an v. Clark, 235 U. S. 669, 59 L. ed. 415, heir of the patient.
L.R.A.1915C, 834, 35 Sup. Ct. Rep. 210; Re Flint, 100 Cal. 391, 34 Pac. 863; Arizona Eastern R. Co. v. Matthews, Re Budan, 156 Cal. 230, 104 Pac. 442; 20 Ariz. 282, 7 A.L.R. 1149, 180 Pac. Re Redfield, 116 Cal. 637, 48 Pac. 794; 159. Re Nelson, 132 Cal. 182, 64 Pac. 294; Plaintiff having failed to include Renihan v. Dennin, 103 N. Y. 573, 57 the deed in the abstract of record, the Am. Rep. 770, 9 N. E. 320; Mason v. record is incomplete, and his assignWilliams, 53 Hun, 398, 6 N. Y. Supp. ment of error based upon that deed 479; Re O'Neil, 26 N. Y. S. R. 242, 7
and upon any provisions of that deed N. Y. Supp. 197; Re Loewenstine, 2
should not be considered. Misc. 323, 21 N. Y. Supp. 931; Re Cole
Smith v. Manlove, 10 Ariz. 173, 85 man, 111 N. Y. 220, 19 N. E. 71; Re
Pac. 1066; Liberty Min. & Smelting Boury, 8 N. Y. S. R. 809; Loder v.
Co. v. Geddes, 11 Ariz. 54, 90 Pac.. Whelpley, 111 N. Y. 239, 18 N. E. 874;
332; Wolfiey v. Gila River Irrig. Co. Towles v. McCurdy, 163 Ind. 12, 71 N. E. 129; Heuston v. Simpson, 115 Ind.
3 Ariz. 176, 24 Pac. 257; Daniel v. 62, 7 Am. St. Rep. 409, 17 N. E. 261;
Gallagher, 11 Ariz. 151, 89 Pac. 412; Heaston v. Krieg, 167 Ind. 101, 119
Wooster v. Scorse, 16 Ariz, 11, 140 Am. St. Rep. 475, 77 N. E. 805; Gurley Pac. 819; Billups v. Utah Canal Env. Park, 135 Ind. 440, 35 N. E. 279; largement & Extension Co. 7 Ariz. 211,
Mansbach, 150 Mich. 34 114 N. W. 63 Pac. 713. 65; Maynard v. Vinton, 59 Mich. 139, There was a valid delivery of the 60 Am. Rep. 276, 26 N. W. 401; deed. Derham v. Derham, 125 Mich. 109, 83 Pass v. Stephens, 22 Ariz. 461, 198
(- Ariz. 220 Pac. 597.) Pac, 712; Diefendorf v. Diefendorf, 29 county, Arizona, set aside on the N. Y. S. R. 122, 8 N. Y. Supp. 617. ground of mental incapacity of The clause in the deed, if it has any
grantor, and undue influence exerteffect, is in the nature of a condition
ed over the grantor by the grantee. subsequent, as appears from the lan
The plaintiff, who is a physician, guage used. Northern P. R. Co. v. Majors, 3
attended his father in his last illMont. 111, 2 Pae. 322; Moore v. Moore,
ness, and while a witness in his own 47 Barb. 257; Ludlow v. New York & behalf was questioned as to his faH. R. Co. 12 Barb. 440; Wright v. ther's mental capacity at the time of Mayer, 47 App. Div. 604, 62 N. Y. Supp. the execution of the deed. This tes610; Star Brewery Co. v. Primas, 163 timony, upon objection, was excludIII. 652, 45 N. E. 145; Mahoning Coun
ed as privileged. It was particularty v. Young, 8 C. C. A. 27, 16 U. S. App: ly sought to show by this witness 253, 59 Fed. 96; Warner v. Bennett, 31
“what narcotics were administered Conn. 468; Mitchell v. Mitchell, 143 Ind. 113, 42 N. E. 465; White v. St.
to the patient," and that their effect Guirons, Minor (Ala.) 331, 12 Am.
upon the disease from which George Dec. 56; Raley v. Umatilla County, 15
Schornick was suffering was to renOr. 172, 3 Am. St. Rep. 142, 13 Pac. der him mentally incompetent. Aft890; Cooper v. Green, 28 Ark. 48; er all of the testimony was in, upon Moore v. Sanders, 15 S. C. 440, 40 Am. the motion of defendant, the jury Rep. 703; Woodruff v. Woodruff, 44 N. was discharged, and judgment by J. Eq. 349, 1 L.R.A. 280, 16 Atl. 4; the court dismissing plaintiff's comChapin v. School Dist. 35 N. H. 445; Frank v. Stratford-Handcock, 13 Wyo.
plaint was entered.
The ruling of the court rejecting 37, 67 L.R.A. 571, 110 Am. St. Rep. 963, 77 Pac. 134; Potomac Power Co.
the offer of plaintiff's testimony on v. Burchell, 109 Va. 676, 64 S. E. 982; the ground of its privileged charac2 Devlin, Real Estate, 3d ed. 1959. ter is the principal assignment on
But even if the court should deter- appeal. It presents a very interestmine that the clause was not a condi- ing as well as important question; tion subsequent, and that the deed did it has not been presented to the not convey, and was not intended to
courts of this state before, and we convey, a present estate to the gran
are at liberty to adopt the rule that tee, but only an estate to commence
seems to us most reasonable and in the future, still there was a valid
best suited to attain justice in cases delivery, for the reason that an estate to commence in the future is ex
of this kind. pressly authorized under the statutes The particular statute invoked by of Arizona.
defendant, while differing somewhat Carpenter v. Hannig, Tex. Civ. in phraseology from the statutes of App. 34 S. W. 774; Matthews V. other states on the subject of privMoses, 21 Tex. Civ. App. 494,
52 S. W. ileged communications, is substan113; Martin v. Faries, 22 Tex. Civ.
tially the same in meaning and efApp. 539, 55 S. W. 601; McLain v. Gar
fect. It is as follows: "A physician rison, 39 Tex. Civ. App. 439, 88 S. W. 485, 89 S. W. 284; Wright v. Giles, 60
or surgeon cannot be examined, Tex. Civ. App. 550, 129 S. W. 1163;
without the consent of his patient, Belgarde v. Carter, Tex. Civ. App. as to any communication made by -, 146 S. W. 964.
his patient with reference to any Mr. Hess Seaman also for appellee. physical or supposed physical dis
Ross, J., delivered the opinion of ease or any knowledge obtained by the court:
personal examination of such paThis is a suit in equity, in which tient; provided, that if a person ofthe appellant, Harry L. Schornick, fer himself as a witness and volunthe son and heir at law of George tarily testify with reference to such Schornick, deceased, seeks to have communications, that is to be a deed of said George Schornick to deemed a consent to the examination Alma A. Schornick, his wife, of an of such physician or attorney.” Civ. 80-acre tract of land (the separate Code 1913, subd. 6, | 1677. property of deceased), in Maricopa It will be noted that the patient