Chipman v. Emeric

Heydenfeldt, J„ delivered the opinion of the Court. Murray, C. J., concurred.

The appellants centend that the lease is void, for three reasons:

1. The assignment to Hibberd, without appellant’s consent.

'2. The failure to build a wharf.

2. The refusal to let plaintiffs have the amount of land they demanded.

As to the first point, the Court below found as a fact, that Peralta, [51]She first grantor, had consented to the assignment oi the lease to Emeric. "This, if it was even necessary, is sufficient to abrogate the covenant against assignment. It is questionable whether, in any case, Such a covenant would be enforced so as to produce a forfeiture. It is in restraint of alienation, and therefore against the policy of the law.

Second. The covenant to build a wharf stipulates for no particular time, and as it was to be built exclusively for the benefit of the lessees during the continuance of their term, the lessor, before the expiration of the term, can have no legitimate cause of complaint.

Third. The covenant to let the lessor have what land he and his brothers might want for cultivation, is a mere personal privilege. It Was doubtless made upon some opinion which the lessees formed as to the quantity they might require, and cannot be construed to extend to any quantity which might be demanded by any successor to the lessor’s rights, whose means of employing capital and labor in agriculture might be so far beyond those of the original lessor, as to take away all the benefits of the lease from the lessees. Indeed the provision is too indefinite to be enforced in favor of any one.

It is also assigned as error, that the appellants have the right to the land free from the lease, because the latter was not recorded when they took their deed of purchase. Pleadings must be most strongly taken against the pleader. In their declaration they fail to allege a want of notice of the lease. On the contrary, they set it out as if it were fully known to them before their purchase, and, as they then go on immediately following, and aver a want of notice of the assignment to Emeric, the inference is irresistible, that they had. notice of the lease. It is equivalent to a direct averment of that fact.