Covenant. The Plaintiff, and one Martha Green (now deceased)
made a lease by indenture, dated the 1st of March 1773, of a Sugar
House &c. to John William Hoffman and his assigns for five
years at L. 70. per ann. payable quarterly. The Lessee covenanted
for himself, his executors, administrators, and assigns, to keep
the demised premisses in good repair, and to deliver them up to the
Plaintiff, at the end of the term, in such good repair &c. John
William Hoffman assigned the lease to the Defendant, who entered
into the premisses. The breach alledged in this action was, that
the Defendant had not paid L. 35. rent in arrear for the last half
year, nor delivered up the premisses at the end of the term, to
wit, the 1st of March 1778, in good order and repair; but that the
roof, window- shutters, floors &c. of the Sugar house were in
decay, destroyed &c.
The Defendant pleaded performance of covenants, payment, and
that an alien enemy, to wit, the British army, commanded by
general, Sir William Howe, on the 1st of September 1777, had
invaded the city of Philadelphia, had take possession of the
premisses, and held the same until the end of the term, and
afterwards; and that during the period they held possession, they
had committed the waste and destruction &c.
To the last plea, the Plaintiff demurred generally; the
Defendant joined in demurrer, and issue &c.
The Demurrer was twice argued, on the 27th of June 1786, and on
the 15th of April 1787, by Coxe, Lewis, and Wilson for the
Plaintiff; and Ingersol, Wilcocks, and Sergeant for the Defendant:
And, on the 6th of October, The Chief Justice pronounced the
Page 1 U.S.
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judgment of the Court; Mr. Justice Rush having declined to give
any opinion, as he had been of counsel with the Plaintiff in this
cause before he took his seat upon the bench.
M'Kean, Chief Justice. Two questions were made in this cause:
1st, Whether the Defendant as assignee of the lease, is bound by
the covenant to repair, as well as the lessee? And 2ndly, Whether
the special matter pleaded, is sufficient in law to bar the
Plaintiff? With respect to the first question, we are clear in our
opinion, that the covenant to repair, and to deliver up the demised
premisses in good order and repair, runs with the land, being
annexed and appurtenant to the thing demised, and shall bind the
assignee as much as the lessee, even if the assignee were not named
by express words, on account of the privity; but in the case at bar
the assignee is bound by express words, and, a fortiori, is
answerable as well as the lessee. This point has been fully settled
in Spencer's case, 5 Co. 16. b. and 1 Salk. 199. 2 Levinz. 206. 1
Rolls Abr. title, (covenant) letter M pl. 1, and N. pl. 2. Vin.
Abr. 6 vol. pa. 411. letter M. pl. 1. 2. 1 Bacon's Abr. 534. c. 5.
and the books cited in these abridgements. The second question is
of great difficulty, and of very great importance in its
consequence. We cannot find, that it has come directly before any
court in England, or in Europe. We wish, that it had come before
abler judges than we pretend to be. However, we must give our
judgment; but we do it with more diffidence than has occurred in
any case since we have had the honor to sit here. As there is no
positive law, no adjudged case, nor established rule, or order, to
direct the court in this point, we must be guided by the principles
of the law; by conscience, that infallible monitor within every
judge's breast, and the original and eternal rules of justice. For,
equity is part of the law of Pennsylvania. 1 Chan. Ca. 141. Grounds
and Rudiments of law and equity. pa. 74. ca. 104. Doct. and Stud.
lib. 1. cap. 16. It is agreed, that if a house be destroyed by
lightning, floods, tempests, or enemies, without any concurrence of
the lessee, or possibility of his preventing the same, this is no
waste in the lessee: For, it is not done by the lessee's
negligence, or any wilful act of his; and he cannot be charged with
using it improperly, and it would thus have perished, even in the
reversioner's possession. 1 Inst. 53. b. Brook, Waste, 69. 4 Co. 63
b. Herlakenden's case. Lanlord's Law pc. 158. 278. 286.
Fitzherbert's Natura Brevium, Waste, 132. 1st Edition. Kelw. 87. It
is also agreed, that where the law creates a duty or charge, and
the party is disabled to perform it without any default in him, and
hath no remedy over, there he shall be excused. As in the cases of
waste against tenants in dower, by the curtesy, for life, or years,
of common carriers, innkeepers &c. of lessees by parol &c.
or of a
Page 1 U.S.
210, 212
cesser during a war. Aleyn. 27. 4. Co. 84. b. Southcote's case,
2 Leon. 109. and other books. But, it is contended for the
Plaintiff, that the Defendant is obliged to pay the rent, and yield
up the tenements in good order and repair, because of the express
covenant: and in support of this doctrine have been cited, Doctor
and Student. Dialogue 2. chap. 4. pa. 124. Alleyn 27. Stiles 47. S.
C. 1 Rolls Abr. 939. S. C. Comyns Rep. 631. 632. 2 Stra. 763. 1
Vent. 185. Plowd. 290. Perkins 738. Brook. title (Covenant) pl. 4.
title, Waste, pl. 19. 31. 2 Leon. 189. Dyer. 33. pl. 10. Saunders
420. 2 Vern. 280. On the part of the Defendant, it is insisted,
that the express covenant in this case does not bind against acts
of God or Enemies, but only against all other events; because such
acts were not in the contemplation of either party at the time of
the lease executed. A risque known and insured ought to be complied
with, agreeably to the bargain, but not otherwise. Every contract
ought to be construed according to the intention of the parties;
and, in the present case, the Defendant had only covenanted to keep
the premisses in repair &c. against ordinary accidents, and not
against a case, which he could by no possibility prevent. That if
the law were otherwise, yet in England relief would be had in a
court of chancery; and that as no such action had ever been
brought, in a case circumstanced as this is, an argument is
furnished, that no such action will lie. In maintenance of this
opinion were cited: Ld. Raym. 909. 4 Bac. Abr. 369. 370. 1 Rolls
Abr. 236. Dyer 56. pl. 15. 1 Blackst. 252. 268. 2 Blackft. 379. 3
Blackgt. 153. 157. Cowper 9.600. Douglass 190. 1 Comyns Digest.
150. Co. Lit. 206. 1 Brown's Parl. cases 526. 528. 15 Vin. Abr.
474. pl. 1. 3 Chan. Rep. 44. 79. 3 Burr. 1240. 1637. Dyer 33. 10.
Sir Tho. Raymond 464. 1 Co. 98. Shelly's case. 6 Vin. pa. 407. ca.
1. 3. 1 Cha. Ca. 72. 83. 84. 190. The books have been thoroughly
searched on this head, and the question discussed with great
ability on both sides. In shore, little more could be done or said
for either party than what has been said and done. In deciding this
intricate and difficult case, it will be of use to state the
different powers of the common law courts, and the court of
chancery, in England, at the time of the revolution. The courts of
law there are governed by general and established rules, from which
they never deviate in any case, be the injustice arising from them
ever so apparent; for, they are bound by their oaths to observe the
strict rules of law. A court of chancery judges of every case
according to the peculiar circumstances attending it, and is bound
not to suffer an act of injustice to prevail; and in doing this, it
conforms to the spirit and intent of the general rule of every
positive law, which always admits of particular exceptions tacitly
understood. The jurisdiction and bounds of these two courts are
fixed.
Page 1 U.S.
210, 213
In this State, the Judges are sworn 'to do equal right and
justice to all men, to the best of their judgment and abilities,
according to law.' There is no court of chancery. The Judges here
are, therefore, to determine causes according to equity as well as
the positive law; equity being a part of the law. Doctor and
Student iib. 1. cha. 16. 1 Chan. Cases 141. Grounds of law and
equity 74. ca. 104. Indeed the common law is common right, common
reason, or common justice. Woods Inst. 4. Were this point brought
before a court of common law in England at this day, I have doubts
with respect to what would be the determination. For, it is laid
down as law, 'that if a lessee covenanteth to leave a wood in as
good plight as the wood was at the time of the lease, and
afterwards the trees are overturned by tempest, he is discharged of
his covenant, quia impotentia excusat legem.' 1 Co. 98. b. In that
case, there was an express covenant; and altho' it was impossible
to restore the trees in the same plight they were, yet he might
plant new ones, or render damages in lieu of them. The same law in
Brook. covenant. pl. 4. Now, was it not equally impossible for the
Defendant to deliver the possession of the premisses in good repair
to the Plaintiffs on the 1st. of March 1778, when they were held by
an hostile army? In Vaughan's reports, in the case of Hayes v.
Bickerstass, pa. 122. it is held, 'that a man's covenant shall not
be strained so as to be unreasonable, or that it was improbable to
be so intended, without necessary words to make it such; for it is
unreasonable to suppose a man should covenant against the tortious
acts of strangers, impossible for him to prevent, or probably to
attempt preventing.' This was an action brought by the lessee
against the lessor, on his covenant for quiet enjoyment. In pa.
119. it is said, that if the lessor covenants that the lessee shall
hold and enjoy his term, without the entry or interruption of any,
whether such entry or interruption be lawful or tortious, there the
lessor should be charged, because no other meaning can be given to
his covenant. In the case before the court, if the lessee had
covenanted for himself and his assigns, to deliver up the tenements
in good order and repair, notwithstanding they should be destroyed
by act of God or of an Enemy, then this action would certainly lie,
because of the special express words; but when there are no such
words, but only generally to repair &c. would it be reasonable
to construe these words so as to extend to the cases put? Cannot
the covenant in this case have another meaning? Can it not be so
construed, that the tenements should be kept in good repair, and in
such order delivered up at the end of the term, without any act or
default in him, or act of any person, who could be prosecuted as a
wrongdoer, to prevent it; and notwithstanding common and ordinary
accidents might happen? Perhaps, however, the common law courts in
England might think, that they were bound by the strict rules of
law, on account of the general express covenant, to determine
against the Defendant, and
Page 1 U.S.
210, 214
that his relief must be in chancery, if any where, because of
the established rules and boundaries of the jurisdiction of these
courts. We must then consider the equity of this case, and
determine upon all the circumstances thereof; for altho' we have
not the chancery forms or methods of carrying several equitable
cases into execution, yet we are to determine, where we may,
according to equity, as making a part of the law, to prevent a
failure or justice. And here we have no precedents in chancery in
point, but the case of the Office, which was taken away by the
ufurpers in the civil war in England, reported in 1 Ch. Cas. 72.
that of the rent of a house, which was seized by the Parliament,
during the said war, for an Hospital for soldiers, Ibid. 84, which
appears to have been taken under advisement by the Chancellor, with
a declaration, that, if he could, he would relieve the tenant; but
it was afterwards probably compromised, as we can find no more of
it; that of the recognizance for payment of L 10,000. to legatees
by an executor, where the testator's estate was so lessened by the
fire of London that it became insifficient to make up the sum, Ibid
190; And that of the fee given with an Apprentice; where L. 120.
was given, and it was provided by articles expressly, that if the
master died within a year, L.60. were to be returned; he died in
three weeks after the execution of the articles; and tho' the
parties themselves had provided against accidents, and tho' the
maxim, 'modus et conventio vincunt legem' was urged, yet an hundred
guineas were decreed to be paid back. 1 Vern 460. I say these
cases, and the uncontradicted assertion of Dunning, that the case
of Paradine versus Jane, and the other cases which went upon the
like principles, had been lately over-ruled in chancery, fee 3
Burr. 1639. and also some others, which have been quoted by the
Defendant's counsel, hold a doctrine that is strongly in favor of
the Defendant.
In Doctor and Student, Dialogue 2. ch. 4. pa 126. Mr. St. German
is puzzled to give a satisfactory reason to the question put by the
Doctor, to wit, 'If a man under age marries, and lands afterwards
descend to the wife, and waste is committed therein after her death
without the concurrence or default of the husband, shall he be
charged with it?' The case, thus stated, shews, that he could not
refuse taking such estate, and, therefore, the charge or condition
annexed to it by law is unreasonable and unjust. He makes the
Student answer it in this manner: 'That there is a great default in
him as in him in the reversion; and that there is as great reason
why he should be charged with the waste, as that he in reversion
should be desherited, and have no manner of remedy, nor yet no
profit of the land, as the other hath.' But I conceive that as
there was no default in either of them, nor remedy over for either
of them, that there is more reason that each of them should bear
his own share of the loss, according to the duration of his estate,
than that the one should be responsible to the other. The maxims,
'Lex non cogit impossibilia.' 'in potentia excusat legem.'
'Constructions are to be with equity
Page 1 U.S.
210, 215
and moderation, to moderate the rigor of the law.' Grounds
&c. 38. ca. 49. apply to the present case. If a lessor
covenants that the lessee shall quietly enjoy against all men, yet
in case he is ousted by an Enemy, or tortiously entered upon by
strangers, no action of covenant can be maintained against the
lessor, notwithstanding the express general covenant. For the enemy
he could not oppose, and against strangers he had a remedy over.
Vaughan 119. &c. This the counsel for the Plaintiff agree to be
the law. Why then should the law make the lessee answerable on such
a general express covenant to surrender the demised premisses in
good repair, when they were destroyed by an hostile army? Ought not
the two covenants to receive the like favorable and reasonable
construction? 'Remedies are to be reciprocal.' 'When the
construction of any thing is left to the law, the law, which
abhorreth injury and wrong, will never so construe it, as it shall
work a wrong.' Grounds &c. 368. To conclude: Our opinion is,
that the Defendant ought to pay the rent; 1st Because of the
express covenant to pay it. 2ndly, Because it is a sum certain, and
the extent of the loss known; and as he was to have the advantage
of casual profits, he ought to run the hazard of casual losses
during the term, and not lay the whole burden of them upon the
lessors; as resolved in Aleyn 27. And 3rdly, because if a tenant by
elegis be interrupted to take the profits of the land, by reason of
war, he shall not hold over, but shall sustain the disadvantage, as
resolved in 4 Co. 81. b. Sir Andrew Corbit's case. But, I am of
opinion, that the Defendant is excused from his covenant to deliver
up the premisses in good repair on the 1st of March 1778; 1st,
Because a covenant to do this, against an act of God or an enemy,
ought to be special and express, and so clear that no other meaning
could be put upon it. 2ndly, Because the Defendant had no
consideration, no premium for this risque, and it was not in the
contemplation of either party. And, lastly, because equality is
equity, and the loss should be divided; he who had the term will
loose the temporary profits of the premisses, and he, who hath the
reversion, will bear the loss done to the permanent buildings.
Neither party has been guilty of any default; the injury has been
done by a common enemy, whom both together could not possibly
resist or prevent, and the premisses would have been thus damnified
in the possession of the Plaintiff himself. Suppose, when the lease
was executed, that the lessee had been asked, Is it your meaning,
that, in case the buildings shall be destroyed by an act of God, or
public enemies, you are to rebuild or repair them? His answer would
have been unquestionably, 'No; I never entertained such an idea.'
Should the like question have been put to the lessor, his answer
would certainly have been, 'No, I do not expect any thing so
unreasonable.' If there is no case in point in favor of this
determination, there is none against it; and since no action of
this kind has hitherto
Page 1 U.S.
210, 216
been brought, a presumption arises, that the sense of mankind is
against it. If, however, we should be thought to be mistaken,
another hearing may be had before the High Court of Errors and
Appeals, on a writ of error, where this new case may be finally
settled.*
Footnotes
[
Footnote *] The parties,
acquiescing in the decision of the Court, no writ of error has been
sued out.
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