Breach of Covenant to Repair.

653

M. & Rob. 186. And where the covenant is to keep and leave the house in as good a plight as it was in at the time of the making of the lease, it is said that ordinary and natural decay is no breach of the covenant, and that the covenantor is only bound to do his best to keep it in the same plight, and therefore to keep it covered, &c.; Fitz. Ab. Cov. 4; Shep. Touch. 169; Johnson v. S. Peter, Hereford, 4 Ad. & E. 520. The lessee, under the ordinary covenant to keep in repair, is not bound to repair damage done before the lease was executed, though since the date fixed by the habendum for the beginning of the term. Shaw v. Kay, 1 Exch. 412.

On a covenant to repair, it is not sufficient evidence of a breach, to show that the house has been thrown down by a tempest, unless the covenantor has not repaired within a reasonable time after. Shep. Touch. 173. Where the defendant pleads that he was always ready to repair, but a reasonable time had not elapsed, and issue is taken thereon; proof that the defendant absolutely refused to repair entitles the plaintiff to a verdict. Green v. Eales, 2 Q. B. 225. Where the damage was alleged to be occasioned by the defendant's neglect to repair and "from no other cause," it was held sufficient to show that the premises became insecure by the removal of an adjoining wall by a third party, and that the defendant did not set about the repair in time to prevent the mischief consequent on such removal. S. C. If the lessee is bound to repair and leave the house in the same plight as he found it, and it is burnt by sparks from the chimney of the lessor's house near, it is said that the lessee is excused from rebuilding, for this is caused by the act of the lessor himself. 1 Rol. Ab. 454, pl. 8. This decision might be right if the fire could be treated as the direct act of the lessor; as however the remedy by the lessee against the lessor would be in case for negligence, it is difficult to see how it can be supported, except on the ground of avoiding circuity of action. The lessee could now however counter-claim against the lessor.

Where the premises have passed through successive hands, it is sometimes not easy to prove in whose hands the want of repair occurred, and each assignee is liable to the lessor for his own default only. But where the plaintiff, a lessee under covenant to repair, assigned over to defendant, who assigned to B., who assigned to C., &c., and the plaintiff, being then obliged to pay damages for non-repair to the ground landlord, sued defendant for the amount, there being evidence of want of repair while in the hands of one of defendant's assignees it was held, that the plaintiff was entitled to substantial, and not nominal, damages, without showing the exact amount of non-repair attributable to the defendant himself. Smith v. Peat, 9 Exch. 161; 23 L. J., Ex. 84. A lessee, under covenant to deliver up certain fixtures at the end of his term, on the 1st of April, remained in possession till the 10th, when possession was demanded by the lessor, and on the 13th he bought the title of a mortgagee of the lessor and refused to re-deliver: held, that the lessor was entitled only to damage for the detention of the fixtures between the 10th and 13th and not to the full value of them. Watson v. Lane, 11 Exch. 769; 25 L. J., Ex. 101. The breach of a covenant to put premises in repair is not a continuing breach. Coward v. Gregory, L. R., 2 C. P. 153. See, however, Martyn v. Clue, 18 Q. B. 661; 22 L. J., Q. B. 147.

Where the covenant is to keep in repair during the continuance of the term, an action for the breach of the covenant may be maintained before the term has expired. Luxmore v. Robson, 1 B. & A. 584. In the case of Marriott v. Cotton, 2 Car. & K. 533, Rolfe, B. directed the jury that nominal damages only could be recovered in such an action, for the lessor (as he said) might pocket the damages and leave the premises unrepaired, and so oblige the lessee to repair them for his own convenience; but the

Ct. of Q. B. held the direction wrong, and a verdict was subsequentr entered for substantial damages; see Bell v. Hayden, 9 Ir. C. L. R. 301, 303, per O'Brien, J.; Smith v. Peat, ante, p. 653. The proper measure of damages is the diminution to the value of the reversion at the time of action. Dod. Worcester School, &c. Trustees v. Rowlands, 9 C. & P. 734 ; Bell v. Hayden, supra; Mills v. E. London Union, L. R., 8 C. P. 79; Williams v. Williams, L. R., 9 C. P. 659. In this last case it was held that where the landlord had himself repaired the premises before action, he could not recover more than nominal damages; sed quære. Where, however, the above-mentioned measure of damages is inapplicable, such diminution of value is not the only test; thus, the lessor may sue, though he has forfeited his reversion by the entry of the ground landlord for the breach, and the test is what will be the cost of repair. Davies v. Underwood, 2 H. & N. 570; 27 L. J., Ex. 113. This is indeed the general rule laid down by Ld. Holt in Vivian v. Champion, 2 Ld. Raym. 1125, and was approved by the court in Daries v. Underwood, supra, but was not followed in Mills v. E. London Union, supra. See also Rawlings v. Morgan, 18 C. B., N. S. 776; 34 L. J., C. P. 185. Where an action was brought for non-repair of premises, demised by the plaintiff to the defendant, the defendant being bound to repair and insure, and the jury found that the premises, which had been burnt down, would cost 1,600l. to rebuild, and that this would exceed by 600l. the value of the old premises as assigned, the court held that 1,000l. was the measure of damage. Yates v. Dunster, 11 Exch. 15; 24 L. J., Ex. 226. If a second action be brought on a covenant to keep premises in repair, the verdict recovered in the former action may be proved in mitigation of damages, but is not pleadable in bar. Coward v. Gregory, L. R., 2 C. P. 153. See further on the measure of damages on repairing covenants, Minshull v. Oakes, 2 H. & N. 793; 27 L. J., Ex. 194; and Mayne on Damages, 3rd ed. pp. 299, et seq.

Breaking a doorway through the wall of the demised house amounts to a breach of a covenant to keep in repair; Doe d. Vickery v. Jackson, 2 Stark. 293. A lessee covenanted to repair, uphold, support, sustain, maintain, &c., all the houses and brick walls. Pulling down a brick wall dividing the courtyard in front from another yard at the side was held a breach of the covenant. Doe d. Wetherall v. Bird, 6 C. & P. 195. But, a mere covenant to repair is not broken by alterations and improvements where they are evidently contemplated by the lease; as where a private dwelling-house is demised by lease containing a covenant to repair the premises and all such buildings, "improvements and additions," as should be made thereupon by the lessee. Doe d. Dalton v. Jones, 4 B. & Ad. 126; see also Doherty v. Allman, 3 Ap. Ca. 709, D. P. A covenant to deliver all "windows" then or thereafter affixed or belonging to the premises, extends to a plateglass shop window put up by the lessee, so as to be movable without screws, nails, or glue, and fastened only by wedges. Burt v. Haslett, 25 L. J., C. P. 201; Ex. Ch., 18 C. B. 893; 25 L. J., C. P. 295. On a covenant to repair, the breach alleged that defendant did not repair, "but on the contrary permitted the premises to be ruinous for want of repair." Held that plaintiff must show permissive and not voluntary waste. Edge v. Pemberton, 12 M. & W. 187.

Where the lessee is obliged to repair in consequence of his lessor's refusal to do so, he cannot recover the expense of finding other premises for use during the repairs. Green v. Eales, 2 Q. B. 225. A lessee, who underlets with covenants to repair in the same terms as in his own lease, is not neces sarily entitled to recover from the under-lessee the cost of an action for nonrepair brought against himself; for though the covenants of the lessee and under-lessee may be in words the same, they are, in substance, different if

Breach of Covenant to Pay Rates and Taxes.

655 entered into at different times. Walker v. Hatton, 10 M. & W. 249. This case was decided on the ground that a covenant to repair is to be construed with reference to the state of the premises when it began to operate; and this ground is no doubt a sound one if by "state of the premises" is meant their age, and not their state of repair, for the lessee's liability under a repairing lease is not dependent on the state of repair in which the premises were at the time of the demise. Easton v. Pratt, 2 H. & C. 683; 33 L. J., Ex. 233, Ex. Ch., cited ante, p. 652. But, the lessee may recover the amount of dilapidations recovered against himself, and occasioned by the underlessee's neglect. Penley v. Watts, 7 M. & W. 601; Walker v. Hatton, supra. And he may recover the costs of such action, if he has given notice of it to the under-lessee, and received his sanction for defending it: and his sanction may be inferred if he does not prohibit the defence. Semb. Blythe v. Smith, 5 M. & Gr. 405, 412-3; and see Rolph v. Crouch, cited post, p. 659. And where the under-lessee A. contracted with the lessee B. to perform the covenants of the superior lease, A. is under a contract to indemnify B., and is, without such sanction, liable to B. for the costs of an action brought against B., by the superior landlord, and reasonably defended. Hornby v. Cardwell, 8 Q. B. D. 329, per Brett and Cotton, L.JJ. The lessee cannot recover from his under-lessee, as special damage, the value of a lease forfeited for non-repair, unless it appears that the forfeiture was solely owing to the under-lessee's non-repair. Clow v. Brogden, 2 M. & Gr. 39. Where A. demised to the plaintiff with special covenants to repair and insure, and the plaintiff underlet to the defendant with like covenants, and A. afterwards recovered possession for breach of the plaintiff's covenant, it was held that the plaintiff could not in an action of covenant against the defendant, recover damages for the loss of his beneficial reversion in the term; for the term was forfeited for the breach, not of the defendant's covenants, but of the plaintiff's covenants, and there was no covenant by defendant to indemnify. Logan v. Hall, 4 C. B. 598.

Where the defendant covenanted to keep the demised premises in repair, the same being first put into repair by the landlord, it was held that the repairing by the landlord was a condition precedent to the defendant's obligation on his covenant. Neale v. Ratcliffe, 15 Q. B. 916; 20 L. J., Q. B. 130; Coward v. Gregory, L. R., 2 C. P. 153. A lessor cannot be sued on a covenant to keep demised premises in repair, unless he has had notice of the want of repair. Makin v. Watkinson, L. R., 6 Ex. 25; Manchester Bonded Warehouse Co. v. Carr, 5 C. P. D. 507. Such a covenant implies a licence to the landlord to go on the land, for a reasonable time, to effect the repairs requisite. Saner v. Bilton, 7 Ch. D. 815. Where the covenant is to repair, the defendant being allowed rough timber by the lessor, the general averment by the plaintiff (lessor) of realiness to supply, &c., will not oblige him to show that he has cut down and prepared timber, defendant not having required him to do so. Semb. Martyn v. Clue, 18 Q. B. 661; 22 L. J., Q. B. 147. An agreement by the landlord to put a building in good tenantable repair is satisfied if it is in such repair when the tenant takes possession, and he does so without objection, although in fact the repairs prove insufficient to strengthen the building sufficiently for the particular purpose to which the tenant applies it. McClure v. Little, 19 L. T., N. S. 287, M. T. 1868, Ex. See Saner v. Bilton, supra.

A covenant by lessor to keep premises in proper condition for storing cartridges has reference only to the physical condition of the premises. Newby v. Sharpe, 8 Ch. D. 39, C. A.

Breach of covenant to pay rates and taxes.] This covenant seems to extend to subsequently-imposed taxes of the same nature as those in existence

at the time of the covenant, but not to taxes of a different nature: see Brevster v. Kitchell, 1 Salk. 198; 1 Ld. Raym. 317. In this case the covenant was to pay a rent-charge, without deducting any taxes. A covenant to pay the rent without "any deduction, defalcation, or abatement"; Bradbury v. Wright, 2 Doug. 624; or an agreement to pay all taxes; Amfield v. White, Ry. & M. 246, obliges the tenant to pay the land tax. A parliamentary tax is one imposed directly by act of parliament. Palmer v. Earith, 14 M. & W. 428. per Parke, B. A sewers rate did not fall within a covenant of this description. S. C. See also Baker v. Greenhill, 3 Q. B. 148. A covenant to pay all taxes and assessments, except "the level tax, property tax, and land tax," was held not to include the tithe rent charge of which the lessor was owner. Jeffrey v. Neale, L. R., 6 C. P. 240.

Covenants to pay taxes, &c., are frequently so framed as not to be limited in their application to the usual annual assesssments made, but to extend to sums levied for the permanent improvement of the premises. How far they so extend, depends on the construction of the covenant in each case. Budd v. Marshall, 5 C. P. D. 490, per Baggallay, L. J. Thus, the words “all outgoings whatsoever, rates, taxes, scots, &c., whether parochial or parliamentary, which then were or should be thereafter" chargeable on the said marsh lands demised, were held to include an extraordinary assessment made by commissioners of sewers for a work of permanent benefit on the land. Waller v. Andrews, 3 M. & W. 312. So, a covenant to pay rent, "free and clear of and from all manner of parliamentary, parochial, and other taxes, rates and assessments, deductions, or abatements whatsoever," was held to include the expense of paving footways, adjoining the houses, which paving was done under a local act requiring the expense to be paid primarily by the tenants, and empowering them to deduct from their landlord's rent the sum so paid by them. Payne v. Burridge, 12 M. & W. 727. So, a covenant "to pay and discharge all taxes, rates, duties and assessments whatsoever which during the continuance of the demise should be taxed, assessed, or imposed on the tenant or landlord of the premises demised, in respect thereof," was held to include the sum which the vestry had compelled the owner to pay them under the provisions of the Metropolitan Management Acts, 1856, 1862, as the proportionate part of the expense of paving the adjoining street under those acts. Thompson v. Lapworth, L. R., 3 C. P. 149. Hartley v. Hudson, 4 C. P. D. 367 (decided under the Public Health Acts, 1848, 1875), is to the same effect. So, where the tenant covenanted to “bear, pay and discharge"" all other taxes, rates, duties and assessments whatsover," which should be charged" on the said premises or any part thereof, or upon the landlord or tenant in respect thereof, or in respect of the said yearly rent; " Budd v. Marshall. 5 C. P. D. 481, C. A. (Public Health Act, 1875), or, "all burthens, duties and services;" Sweet v. Seager, 2 C. B., N. S. 119 (Metropolis Management Act, 1856), or, "all taxes, rates, assessments and outgoings whatsoever," "imposed upon the said demised premises," or " upon the landlord or tenant in respect thereof or on the rent thereby reserved;" Crosse v. Raw, L. R., 9 Ex. 209 (Sanitary Act, 1866, s. 10). See also Midgley v. Coppock, 4 Ex. D. 309, C. A. (decided between vendor and purchaser). But under a covenant to pay "rates and assessments which whether parliamentary, parochial, or otherwise now are or at any time during the said term shall be taxed, rated, charged, assessed, or imposed upon the said premises or any part thereof, or upon or payable by the occupier or tenant in respect thereof," it was held that a charge similar to that in Thompson v. Lapworth, supra, must be borne by the landlord, as it was imposed on him in respect of the premises, and the tenant did not, by his covenant, relieve the landlord of this burthen. Allum v. Dickinson, 9 Q. B. D. 632, C. A. The decision in Tidswell v. Whitworth, L. R., 2 C. P. 326, decided on a local act.

Breach of Covenant for Title.

657

is to the same effect. See this case explained in Thompson v. Lapworth, L. R., 3 C. P. 149, 159. So, under a similar covenant, the lessor was held bound to bear the cost of work done by him under an order made on him under the Public Health Act, 1875, s. 94. Rawlins v. Briggs, 3 C. P. D. 368. See also Bird v. Elwes, L. R., 3 Ex. 225.

The principle to be deduced from the above cases may be shortly summa-. rized as follows. Where the covenant includes only an obligation to make money payments, to the local or other authorities, then, although the tenant is liable to reimburse the owner, when the duty is primarily to pay money to the authorities (as in Waller v. Andrews, Payne v. Burridge, Thompson v. Lapworth, and Hartley v. Hudson, ante, p. 656), yet he is not liable, where the owner is primarily bound to do the work himself, and it is only on his default, that the authority could do the work and assess him (as in Budd v. Marshall, Tidswell v. Whitworth, ante, p. 656, and Rawlins v. Briggs, supra). The covenants may, however, be wide enough to cover the obligation to do work at the instance of the local authority; Allum v. Dickinson, Sweet v. Seager, and Crosse v. Raw, ante, p. 656; a covenant to pay all "duties," or "outgoings" being sufficient for this purpose; S. CC. As to the construction of a covenant to pay rates on mines levied under the Rating Act, 1874, see Chaloner v. Bolckow, 3 Ap. Ca. 933, D. P.

An absolute covenant to pay rates is broken on non-payment, although no demand has been made on the tenant for payment. Davis v. Burrell, 10 C. B. 821.

Where the lessor covenants with the lessee, to pay all rates and taxes already charged, or to be charged on the premises, he is liable to pay them only on the rent reserved, and not on the full improved value of the premises Watson v. Home, 7 B. & C. 286; Smith v. Humble, 15 C. B. 321.

Breach of covenant for title.] The covenants for title, on which remedies are sought in the courts of common law, are principally the covenant that the grantor is seised in fee, or has power to convey; and the covenant for quiet enjoyment express or implied, and freedom from incumbrances. By the Conveyancing and Law of Property Act, 1881, 44 & 45 Vict. c. 41, s. 7, in the case of conveyances on sale, mortgage, or settlement, or by a trustee, mortgagee, &c., executed after 31st December, 1881, the respective covenants, which were usually inserted in such instruments, are now implied. By sect. 7 (7) such covenants may be varied, or extended by the instrument. The statement of claim alleges, by way of breach, that the defendant was not seised, or had not power, &c., at the time of the conveyance, or that some person who before and at the time of the conveyance by the defendant had, and still has, lawful right to the premises, &c., entered and evicted the plaintiff or that the entry or other disturbance was by or under the defendant himself.

Proof that the defendant is in as heir of the lessor is sufficient to charge him as assignee of the reversion of a lease. Derisley v. Custance, 4 T. R. 75. See post, Part III., Action against heir and devisee.

There seems to be some doubt as to how far the breach of a covenant for title is continuing in its nature. It has been recently held that where A. conveys land to B., his heirs and assigns, and covenants with them for title, and B. conveys the land to C., C. cannot sue A. in respect of an incumbrance affecting the land prior to the latter conveyance. Spoor v. Green, L. R. 9 But this decision is hardly consistent with the cases of Kingdon v. Nottle, 4 M. & S. 53, and King v. Jones, Id. 118, cited ante, p. 642. In Spoor v. Green, supra, the incumbrance affecting the land, was a mining lease granted by A., prior to the conveyance to B., and it was held that the breach was complete at the time of the conveyance to B., and that no fresh cause of

Ex. 99.