Jackson, ex dem. Livingston and others, against Groat

Jackson, ex dem. Livingston and others, against Groat. NEW YORK, May, 1827. a covenant ^at ^ see or his, asmfnded'to sell °r .disP°se of they may do the^príemp”to the lessor, and paying one tenth of money to him” provided, that done, the lease I13®11, ,be felted, is valid; and extends signment by tohtoassigiiee^ eitber by °pB" ration of law or voluntary ^"íatte*1 as-f sign_ without pre-emption,h” money, the g¿ase is i'orfeit' Ejectmeht, for a farm in Columbia county, leased by H. W. Livingston, (under whom the lessors claim as devisees,) to one Brusee, during the lives of himself and his wife. The tease was dated May 2d, 1798. The cause was tried at the Columbia circuit, September, 1824, before Walworth, 0. Judge; where the only question was, whether the premises were forfeited by violating the covenant of tenth sale in the lease. This covenant i-t-t — . . by the lessee, that if he, his executors, administrators or assigns, should be minded or inclined to sell or dispose of their estate, &e., it should be lawful for them to do so, first giving pre-emption to the lessor, his heirs or assigns. And on every such sale or assignment, should pay to the lessor, .... . . ’ r , ’ ms heirs or assigns, a tenth part of the purchase money, And provided further, that if the lessee, his executors, ministrators or assigns, should leave the possession, &c., or if they should not well and faithfully observe and perform all, and every the articles, covenants and agreements in the . ’ ° lease, on their part to be performed; then the lease and estate granted, to cease, &c.; and it should be lawful for the lessor, his heirs and assigns, to enter, &e. ■ April 21st, 1817, the lease was assigned by the lessee’s administrator, (he first paying the 10th sale,) to Williams; who, on the 17th of March, 1823, (without offering the pre-emption to the lessors,) assigned to the defendant *for the consideration of.$450. The defendant ra fused' to pay the 10th sale on the last assignment. Verdict for the defendant, subject to the opinion of this’ court. K. Miller, for the plaintiff. The covenants were no doubt legal and valid; (18 John. 174; 15 id. 278;) and we contend that they cover each and every sale or assignment, by the tenant, his executors, administrators, or assigns. E. Williams, contra. Whether an action of covenant would lie, is one question. The last assignment is not a forfeiture. The action is for a penalty ; and. the covenant should be construed with great strictness. Covenants in restraint of alienation are barely tolerated. They are odi-ous, and'not to be extended by construction. The parties must bring themselves strictly within such a. covenant. We say this covenant was binding on the lessee al-one; and relates only to the first alienation. The word assigns does not mean remote assignees, or those by operation of law; -but immediate purchasers, or voluntary assignees. (15 John. 279, 280, per Platt, J. and cases there cited.) Miller, in reply. The remedy depends on the provisions of the contract. I admit that we must bring ourselves literally within it; and we have done so. While the courts will not create forfeitures by intendment, yet they will always enforce the contracts of parties according to their plain provisions. Every assignment, whether by the immediate lessee, or by his assignee, is provided for. If the money be not paid, the forfeiture is incurred. I do not deny that the sale must be voluntary. It is so; and by one who is expressly named in the .covenant;; by one who is bound in terms. Ho discrimination is made in the lease between voluntary, or other assignees. [MAJORITY — Curia, per Sutherland, J.] Curia, per Sutherland, J. The only question is, whether the covenants .of pre-emption and of tenth sale, *are confined to the first .assignment .only. The validity of these covenants is fully established by the case of Jackson, ex dem. Stevens v. Silvernail (15 John. 278,) and Jackson, ex dem. Lewis and wife v. Schutz, (18 John. 174.) The covenants extend to every alienation. The terms are too clear and explicit to admit of any question. They are, that if the party of the second part, his executors, administrators or assigns, shall be inclined to sell or dispose of their estate in the premises, it shall be lawful for them so to do, provided they first give the pre-emption to the lessor, his heirs or assigns; and on every such sale or assignment, pay one tenth of the purchase money to the lessor, &e. The term assigns, clearly embraces every purchaser by voluntary sale, as well as upon execution. It is much more appropriate to the former than the latter; and we have no right to say the parties did not mean to use the term in its ordinary legal sense. Judgment for the plaintiff.