The Hawaiian gazette., 1884-12-10

that he shall secure the recqlpt OF tDt
entire Commission
The naked question oflaw remains as e
| the effect Of this acceptance Of rent Il
Woods L. & T. Section S23 II Is laid dow
that an assignment, even when expressly
forbidden by the lease, and when, by the
terms Of the lease, forfeiture is provided
for lis breach, is nevertheless valid, and
passes the estate to the assignee subject
to the consequences OF the breach, and thS
landlord NAV waive the forfeiture eithei
expressly or implicitly, by personally &c
cepting rent that accrues subsequent tC
the assignment knowing the fact that such
assignment has been made The case II
support IS Goodnight vs. Davids, Coiepo
SoS Here Lord Mansfield lin us said
This case is extremely clear: To con
strue this acceptance OF rent due since the
condition broken, waiver Of forfeiture
Is to construe it according to the intention
Of the parties. Upon the breach OF the
condition the landlord has right TO enter
he had full notice Of the breach, and does
not take advantage OF b; but accepts rent
subsequently, accrued. That shows he
meant the lease should continue. Cases
Of forfeiture are not favored in law; and
Court Will not assist it, In a case in the
same volume Cheney rt. Baiim Ashton J.
said. when an eiectment has been brought
on the Statute of George for the forfei-
ture of lease, there being half years
rent in arrears, and no sufficient distress
in the premises; there. acceptance OF rent
afterwards by the landlord, has believe,
been held q waiver of the forfeiture of the
lease: which may well be, for it is a
penalty, and by accepting the rent the
party valves the penalty
InShattuck vs.. Lovejoy VIII Gray 2o4 the
Court say sThe breach OF covenant by the
lessees, by assigning the lease and per
hitting other persons to occupy the pre-
misses, without the appreciation Of the les
sor. or those having his estate in the pre-
misses, did not terminate the lease and re
vest the estate IN the lessor or his assigns"
In Rogers VS.. Snow lis Mas lis the
Court held that a. breach Of condition in a
lease which provides that, in case the les
see negiects to perform his covenants, the
lessor may, while such neglect continues
enter upon the premises and expel the
lessee. and that upon such entry the term
shall cease, does not work forfeiture of
the lease, without entry. The Court per
Morton J. say under this the lease may
be terminated upon the refusal to payreni,
at the election Of the lessor; but tits clear
that unless he enters while the default
continues, the lease remains in force
But to give acceptance of rent in such
cases the effect of waiver, the lessor must
be aware Of the assignment.
In Gregson vs.. Harrison DE-4jord 4
a-l1-g Il IL s1.~. : IA -
appear that the landlord was cognizant of
the forfeiture. The giving Of the receipt
by the landlord for rent subsequent to the
time of the forfeiture, is indeed an &C
acknowledgement of the tenancy, but that
is only where he knows the act Of forfei-
ture at the time
In the case at bar the Commissioner and
Land Agent consented in writing to the
assignment to the plaintiffs. This must
be held to be knowledge Of the assignment
and was notice to the whole Board.
But 1t is urged upon US that the plain
tifs have no privify of contract with de
PENDANTS and consequently have no right
to bring this action. By all the author
ties covenant for quiet enjoyment runs
with the land and Is therefore binding on
the assignees Of the reversion. Ii may
also be rendered available by the assig
nees Of the term Wood, l. & T. Section
S66.
Campbell vs. Lewis 3 Bara. d Ald. 800 Is
4 case quite similar to the one at bar. An
action for damages for breach of covenant
for quiet enjoyment by an assignee Of
lease was sustained on the ground that
there was a pririy ef estate between him
md the lessor. Holroyd S. says i am of
opinion that this action Is maintainable
upon the covenant, whether any estate re
main in the coyenantor or not, for II Is a
covenant running with the land" In this
,ase it was conceded that there was no
lrivity of contract.
The earlier case Of Middlemore VS.. Goo /
iale cro. Car. sos had decided, where a
PARTY grants an estate IL fee, with q cove
liant for further assurance. and his gran
ZEE grants it over to A, that a may main
ain covenant against the original grautor,
N the ground that privity of estate ex-
SITS between them. The same question |
rose upon a chattel real and was decided |
he same way in Noke vs.. Awder Gre. Elis |
I73. 436.
There is privity of estate between the |
defendants Qessors) and plaintiffs who are |
he assignees of the term. there having |
,een no reentry for breach Of condition.
The exceptions are oveTuled.
A S. Hartwell, for plaintiffs; Attorney |
General Neumann, for defendants.
Honolulu. December 1st, 1884.