England and Wales High Court (King's Bench Division) Decisions

KING'S BENCH

		Friday 1st July 1808

The plaintiffs declared in covenant upon an indenture, made the 23d November 1752, whereby they demised to John Clayton a piece of ground in Congleton, called the Byflatt, and a certain slip of land, through which a water-course was intended to be made, with liberty for making and repairing the same, and with liberty for Clayton, his executors, administrators, or assigns, to erect in the Byflatt a silk-mill, etc. habendum the said piece of ground and premises etc. to Clayton, his executors, administrators, and assigns, for 300 years from the date of the indenture; yielding and paying as therein mentioned. And Clayton covenanted for himself, his executors, administrators, and assigns, with the corporation, that he, his executors, etc. would at all times during the term, before any persons should be received as servants, workmen, or apprentices, in such silk-mill, give notice of their names to the town-clerk of the borough, for the time being; and if he should immediately give satisfactory information to Clayton, his executors, etc. or to the then owner or occupier of the silk-mill, that any of the persons in such notice were legally settled in any other parish or township, and not in Congleton, then they should not be received to work in the business of such silk-mill, before a certificate of the settlement of such person under the stat. 8 & 9 W. 3, c. 30, should be given to Congleton. The declaration then stated the entry of J. Clayton, and the building of the silk-mill; and that on the 1st of January 1790 all the estate and interest, etc. of J. Clayton in the premises duly came to and vested in the defendants by assignment, by virtue of which they entered and were possessed, etc.: and then assigned as a breach, that after the defendants became so possessed, and while they were working the silk-mill, and during the continuance of the term, they received divers persons as servants, workmen, and apprentices to work in the said mill, without giving the previous notice before mentioned to the town-clerk of Congleton, and that the persons so received worked in the said mill without any such notice, and that they had not previously gained any settlement in Congleton: by reason of which the township of Congleton had become liable to relieve them and their families, and had expended a large sum in the same, and continued liable to the burden, etc.: and that the plaintiffs had also incurred great expence in the premises, and their estates and property in the township had been lessened in value.

The defendants, after craving oyer of the indenture, by which it appeared further, that the term was granted by the corporation in consideration of 80l. paid, and of a nominal yearly rent; demurred generally to the declaration.

Littledale, in support of the demurrer, argued that this was not a covenant which run with the land, and therefore could not bind the defendants as assignees of the term. To make a covenant run with the land, it must appear that the performance or non-performance of it will affect the thing demised, but this is a collateral covenant not to introduce foreign poor into the township, and does not at all affect the working of the mill or the premises demised. Neither can it affect the corporation as the reversioner; for if any additional burden were brought upon the township by such new-settled inhabitants, the lessee or occupiers must bear it. The covenant amounts to no more than an undertaking to indemnify the landlord from the expence of foreign poor; and is the same as if the lessee had covenanted to pay so much annually to the churchwardens and overseers for the use of the poor; which in Mayho v. Buckhurst^[1] was held to be a collateral personal covenant. It does not appear but that at the end of the term the number of poor persons in Congleton may be diminished, notwithstanding a temporary increase for the present; or supposing the population there should then be greater, yet there may be a corresponding increase in the value of the lands, from the greater demand for the produce. Besides which, the question is blended with the general policy of the country, which may be affected by stipulations not to employ labourers out of other districts. Spencer's case^[2] lays down the distinction between collateral covenants and such as run with the land; the latter must be such as effect the demised land itself, and not merely the collateral interest of the lessor; and this was recognised in Bally v. Wells^[3]); though there the covenant by a lessee of tithes, not to let any of the farmers of the parish have any part of the tithes, was held to run with the tithes and bind the assignee. In Tatem v. Chaplin^[4] a covenant by the lessee, to reside constantly on the demised premises, was held to bind the assignee, though not named; but that affected the mode of occupying the land. And in Brewster v. Kitchin^[5] Lord Holt held that a covenant by tenant in fee, who granted a rent-charge out of lands, to pay it without deduction, for himself and his heirs, would not bind his assignee. So Co. Lit. 215 b. commenting on the stat. 32 H. 8, c. 34, enabling grantees of reversions to re-enter on condition broken by non-payment of rent, doing waste, or other forfeiture, confines it to such conditions as are incident to the reversion, as rent, reparations, etc. and not for the payment of any sum in gross.

Richardson contra. The quantum of interest cannot vary the question, if the covenant in any respect affect the land. Neither is it material to inquire whether the breach of the covenant will affect the lord's interest at the present period, if it may affect the land at the end of the term. [Lord Ellenborough C.J. Can we see with certainty that the increase of population in the township at the end of the term, supposing that to be the consequence of the defendant's acts, will prejudice the land, or affect the value of the reversion? It might affect immediately other lands of the corporation in the township; but it could not affect the interest of the corporation in these lands during the term.] There is no certainty of that effect being produced, but there is a reasonable probability of it; and the parties themselves have so considered it on the face of the deed. There is no certainty of prejudice to a landlord by breach of many husbandry covenants during the term; but if the parties stipulate for their performance upon the presumption that prejudice may ensue from the breach of them, that is sufficient to sustain the action. The case of Bally v. Wells^[6] cited, shews that the prejudice to the reversioner need not be certain, and that it need not arise during the term. The covenant may be said to regulate the mode of enjoyment of the thing demised. By throwing a greater burden of poor upon the lessee or occupier in respect of the land, it may render him less able to pay his rent. But the injury to the reversioner during the term is not the principle on which these cases have proceeded. In London, and other great towns, it is a common restriction in leases that the occupiers shall not carry on their particular trades, which would certainly bind an assignee: and yet it cannot be said to be any immediate prejudice to the property during the term, or even afterwards in many instances: on the contrary, it might render the estate more valuable to the landlord in point of future rent.

Littledale, in reply, with respect to covenants against exercising particular trades on the demised premises, they may run with the land, because they prescribe a particular mode of enjoying it; and if the appearance of the premises were any way altered for the purpose, it would be waste, as altering the evidence of identity of the thing demised. The same answer will apply to covenants regulating the course of husbandry. The term may end before the land is restored to its original or covenanted state, or the influence of the charge may continue after the appearance of it is done away. But the covenant here cannot affect the state, condition, or occupation of the land, even during the term; and it cannot be told whether, at the end of the term, there may be more poor or an increased rate, or, if increased, that there will not be a proportionable increase in the value of the land, from the very circumstances of an increased population.

Lord Ellenborough C.J. This is a covenant in which the assignee is specifically named; and though it were for a thing not in case at the time, yet being specifically named, it would bind him, if it affected the nature, quality, or value of the thing demised, independently of collateral circumstances; or if it affected the mode of enjoying it. But this covenant does not affect the thing demised, in the one way or the other. It may indeed collaterally affect the lessors as to other lands they may have in possession in the same parish, by increasing the poor's rate upon them; but it cannot affect them even collaterally in respect of the demised premises during the term. How then can it affect the nature, quality, or value of the thing demised? Can it make any difference to the mills, whether they are worked by persons of one parish or another: or can it affect the value of the thing at the end of the term, independently of collateral circumstances? The settling an additional number of persons in this place may indeed, by means of the increased population, bring an increased burden at the end of the term on those who are to pay the rates: but that increase of population may also be an increased benefit of the land-owners, as it has happened within our own experience in many parts of this kingdom, the seats of manufactures, where the value of land has, in consequence, risen in a great proportion. But the covenant in question does not affect the thing demised immediately, but only, if at all, in respect of collateral circumstances; that is through the medium of an increased population, and the increased expence of providing for them on the one hand, with the increased value of the lands to be set against it on the other hand. How then does it affect the mode of occupation? The carrying on of a particular trade on the premises may be said to do that; but where the work to be done is at all events the same, whether it be done by workmen from one parish or another cannot affect the mode of occupation. The covenant therefore, not directly affecting the nature, quality, or value of the thing demised, nor the mode of occupying it, is a collateral covenant, which will not bind the assignee of the term, though named; and this is a question with the assignee, and not with the original lessee who entered into the covenant. In the case of Bally v. Wells, the covenant might affect the thing demised; for if the lessee of the tithe suffered any of the farmers of the parish to take their own tithes, such union of the land with the tithe might lay a foundation for claiming a modus, which might affect the future value of the tithes, and would immediately affect the occupation. But we cannot say that this covenant does either; and therefore it does not run with the land so as to bind the assignees.

Le Blanc J.^[7] This covenant does not appear to me to run with the land, or bind the assignee. The question does not depend upon the length of the lease, or whether the injury to the lessor is to take effect in more or less time, but whether the thing covenanted to be done or not to be done immediately affects the land itself, or the mode of occupying it. But here it is only by collateral circumstances that this can make the land more or less valuable. It can no otherwise affect the land than as by introducing a greater number of persons into the parish who were not before settled there, and by enabling them to gain settlements, it may by possibility hereafter create a greater number of poor, who must be maintained by the occupiers, and so affect them; but this cannot be said to affect the land itself, or the mode of cultivating or occupying it. It is no more than if the lessee had covenanted that he would not employ such persons in any other house within the parish during his occupation of the premises in question. The work done is the same, whether by one set of servants or another; the nature of the property is not varied by it: but to employ persons in the mill who were not before settled inhabitants of Congleton may create a speculation whether it will affect the interests of the occupiers there. The ground, however, on which I distinguish this case from others is, that this is not a covenant which affects the land itself or the mode of its occupation.

Bayley J. I agree that it is not material to consider how soon the act done, which was covenanted not to be done, may affect the land; but in order to bind the assignee the covenant must either affect the land itself during the term, such as those which regard the mode of occupation; or it must be such as per se, and not merely from collateral circumstances, affect the value of the land at the end of the term. Covenants to restrain the exercise of particular trades in houses fall within the first class: they affect the mode in which the property is to be enjoyed during the term. The case in Wilson may rank under the second class: for if the lessee or a stranger were in the actual occupation of the tithes during the term, the evidence of the lessor's right to them would be continued, and therefore the estate of the reversioner would be better at the end of the term. But here the state of the premises will be the same at the end of the term, whether the parish be more or less burdened with poor. I agree that the value of the reversion will not be so much if the poor's rate on the land be increased; but that burden would be increased by a collateral circumstance; and where the value of the reversion is only altered by collateral circumstances, the covenant will not bind the assignee of the land. As in the instance put of a covenant not to employ foreigners in any other mill in the parish: and yet the value of the reversion would be affected in the same manner in the one instance as in the other. Suppose a covenant by the lessee to make a communication by water from the demised premises through other persons' lands to another place, to facilitate the access to a market, the value of the reversion would be materially affected by the performance or non-performance of such a covenant; but it could not bind the assignee, because all the cases shew that the assignee is not bound unless the thing to be done is upon the land demised. Therefore, as this covenant does not affect the occupation of the land, nor alter the actual state of the property from what it would otherwise be at the end of the term, it does not bind the assignee.

Judgment for the defendant.

Note 1   1 Cro. Jac. 438.    [Back]

Note 2   5 Rep. 16.    [Back]

Note 3   3 Wils. 25 and Wilmot's Rep. 341.    [Back]

Note 4   2 H. Blac. 133    [Back]

Note 5   1 Ld. Ray. 322.    [Back]

Note 6   3 Wils. 25.    [Back]

Note 7   Grose J. was absent.    [Back]