Randol v. Scott
Before: McFarland
Synopsis
Lease—Assignment—Covenant by Joint Lessees—Insolvency of One Lessee—Forfeiture.—A covenant by two joint lessees of land not to assign the lease or permit any assignment thereof to be made by bankruptcy or otherwise, without the written consent of the lessor, is not broken, so as to incur a forfeiture of the lease, by an adjudication and assignment in insolvency by one of the lessees of his interest in the lease, to which the other lessee is not a party, and which he could not have prevented.
Id.—Construction of Covenant—Condition Involving Forfeiture.—A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created, and to prevent the restraint from going beyond the express stipulation; and a covenant by the lessees not to assign the lease must be presumed to mean that the lease should not be assigned by the joint act of the lessees.
Id.—Cultivation in Husbandlike Manner—Breach of Covenant— Waiver of Objection.—Under a covenant that the land shall be continuously cultivated in a good and husbandlike manner, and kept clear of other growth, except that the lessees may raise squash or pumpkins between the peach trees during the first two years of their growth, the planting of corn, beans, and nursery trees over a very small part of the land is too trivial a matter to warrant a forfeiture of the lease, where the lessor had a right to inspect the premises, and to be informed of the condition of the land and trees and of the performance by the lessees of their covenants, and made no objection to what was done by the lessees.
McFarland, J. A demurrer to the amended complaint was sustained; plaintiff declined to further amend; and judgment was rendered for defendants. Plaintiff appeals from the judgment.
The action is to recover possession of land leased by the plaintiff, upon the ground that certain covenants of the lessees have not been kept—substantially a bill to declare the forfeiture of a lease. The provision for the forfeiture is that “ if default shall be made in any of the covenants herein contained, then it shall be lawful for the lessor to re-enter the said premises.”
The term of the lease was ten years from the first day of October, 1890. The lessees were Eugene B. Scott and W. W. Cozzens. The land leased was four hundred and nineteen acres of uncultivated land. By the terms of the lease the lessees were to lay out and divide four hundred acres of this land into eight convenient parts as nearly equal as may be, “having regard to separate facility of access, and subject to the approval of the lessor”; they were to “thoroughly prepare” this four hundred acres for planting, and to plant the whole thereof with trees of French prunes and peaches of certain specified varieties, and to complete the planting in the winter of the year 1890; they were to properly tend, cultivate, prune, and care for these trees during the whole. term of the lease, and to protect them from disease and insects by the most improved methods; and they were to gather the fruit (of course, after the trees should have commenced to bear) each year in boxes and deliver one-[594]•third thereof, as rent to plaintiff, at a place in San Jose ■to-he selected by her agent. There are other covenants •by the lessees not necessary to be here noticed, because "4he complaint admits that all the covenants were fully ■complied with, except the two hereinafter mentioned. .
One of the covenants alleged to have been broken is ■as follows: “And the said lessees do hereby covenant .....not to assign this lease, or permit any assignment thereof to be made by bankruptcy or otherwise, without the written consent of the lessor.” And the alleged breach of this covenant is based upon the alleged facts that in September, 1891, said Cozzens filed his petition in insolvency in the proper court, and included in the schedule of his property “an undivided one-half interest” in said lease; that he was subsequently adjudged by said court to be an insolvent debtor; that in October, 1891, one Burkholder duly became his assignee; that in due course all of said Cozzens’ property was assigned to said assignee; that in March, 1892, said assignee was empowered by said court to sell all the property of said insolvent; that he threatens to sell the same, including the said half-interest in said lease; and that said Scott and said Burkholder are in possession of said demised premises, and withheld the same from •plaintiff.
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