Jackson, ex dem. Hardenburgh and others, against McClallen and others

*Jackson, ex dem. Hardenburgh and others, against McClallen and others. This was au action of ejectment, brought to enforce an alleged condition in a lease. The cause was tried at the Cayuga circuit, March 9th, 1826, before Thboop, 0. Judge; when the following facts were in evidence: The ancestor of the lessors of the plaintiff demised certain premises, in fee,, to William Smith, under whom the defendants hold. The habendum in the indenture of lease, was as follows: “ To have and to hold the said piece or parcel of ground above mentioned, unto the said William Smith, his heirs and assigns forever, erecting, building and keeping in repair a certain shed, which he, the said William Smith, is to erect and build on said ground, for the use of the mill, 20 feet by 12.” The lease then proceeded: “ and the said William Smith, for himself, his heirs and assigns, doth covenant, promise and agree, to and with the said J. L. Hardenburgh,” (the lessor), “his heirs and assigns, he, the said William Smith, his heirs and assigns, shall well and truly build or cause to be built and kept in repair, the aforesaid shed for the use of the mill, according to the true intent and meaning of these presents.” Then followed a covenant that the lessee, performing his covenants, "should quietly enjoy. A demise was to W. S., his heirs and and keeping in taEi^ ashed^ wMchhe,^tb® to erect and the^úse^of1"0» mill, &c., with YA&^fo^hiim ^fg at”dergQ® and build the ¡t^lh^repair! The shed was ped up and mentioned. Seld, that the remedy was on the covenant alone; and that the words “ erecting, building and keeping in repair,” &c., did not create a condition. These and the like words in a demise, as paying rent, making up the hedge again, paying the rent and, performing covenants, &c,, do not, per se, create a condition, where there is an express covenant to pay or perform, &c. Otherwise, it seems, where there is no remedy by covenant. Though the shed was built, it was closed up, and converted to uses other than that mentioned in the lease, before the bringing of this action. The judge decided that the lease was forfeited by thus shutting up the shed and converting it to other purposes; and directed a verdict for the plaintiff, which was given. A motion was now made, in behalf of the defendants, for a new trial, on the ground that the words respecting the erection and keeping in repair the shed, were not words of condition. And several authorities were cited to this point. 2 Eol. Eep. 466; Bac. Abr. Condition, (Gr.) note; Shep. Touch. 118, 121, 123, 125, 127; 2 Bl. Com. 282; 7 John. 235 ; 3 Oowen, 220. * Authorities cited, contra : Co. Lit. 203, b.; Cro. Eliz. 242, 202; 2 Eep. 69, 71; 4 Leon. 50; Lit. § 331; 3 Cowen, 220. W. H. Seward and D. Gady, for the motion. Jno. Porter, contra. [MAJORITY — Curia, per SAVAGE, Ch. J.] Curia, per SAVAGE, Ch. J. The only question is, whether the lease contains a condition, the breach of which works a forfeiture of the estate. The words commonly used to create a condition, are upon condition. A proviso is sometimes considered a condition ; but words similar to those used in this lease, have not usually been considered so, without some express stipulation, that, upon non-performance, the estate shall cease, or the lessor may re-enter. A lease of land, paying rent, is no condition. So a power to dig up trees, making up the hedge again, is not a condition; but covenánt lies for not repairing the hedge. (2 Show. 202, case 205. Vin. Condition, (C) pl. 16, (H.) pl. 19.) So similar words may amount to a condition, when without such construction the party could have no remedy; but not when there are express covenants to which recourse may be had. (Bac. Abr. Condition, (&).) In Hayes v. Bickerstaffe, (2 Mod. 35,) the lessor covenanted that the lessee, paying the rent and performing the covenants on his part to be performed, should quietly enjoy. The action was brought by the lessee, on the covenant for quiet enjoyment, for a disturbance by the lessor. The defendant pleaded a breach of covenant by the plaintiff, and so the defendant’s covenant ceased to oblige him. To this the plaintiff demurred; and the question was, whether the lessor’s covenant for quiet enjoyment was conditional; and it was adjudged not. It was said by counsel arguendo, and apparently assented to by the court, that paying and yielding were never considered a condition, nor was an entry ever known for non-payment of rent upon those words alone; and that there was no difference between those words and paying and performing. *1 have seen no case where such words have, of themselves, been adjudged a condition. To make a condition, other words should follow, as that, upon non-performance, the lessor shall reenter, &c. In this case, the party has his remedy upon the express covenant; and ought not to avoid his grant for the cause appearing in the case. A new trial must be granted, with costs to abide the event. Hew trial granted.