Miller v. Prescott

• Decision Date: 04 January 1895
• Citation: 39 N.E. 409,163 Mass. 12
• Parties: MILLER v. PRESCOTT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 12

39 N.E. 409

MILLER v. PRESCOTT.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1895

COUNSEL

Elder,

Wait & Whitman, for plaintiff.

Wm. D Turner, for defendant.

OPINION

KNOWLTON J.

The plaintiff's testator, who was the lessee of the real estate described in the writ, entered into a covenant not to "make or suffer any waste, or any unlawful, improper, or offensive use of said premises." By the terms of the report the verdict is to stand, unless there was error in one of the two following rulings: First, "that unlawful use of the premises by a subtenant was a breach of the covenants and conditions of the lease, whether known by the plaintiff or her testator or not"; second, "that if the rent for the months in question was paid over and received according to the receipts put in evidence marked 'Exhibit 2,' that would not amount to a waiver of the breaches then known to the defendant." On these receipts for accrued rent was the following indorsement "The receipt of this rent is not to waive any breach of the covenant and conditions of the lease on the Howard street estate." The covenant referred to is a covenant concerning land, and affecting the mode of enjoyment of it. Such a covenant runs with the land, and is binding upon persons who are in privity of estate with the covenantee. It is intended for the protection of the lessor, and he may enforce it directly against the original lessee, or against an assignee of the lease. If there is no assignment of the lease, but a subletting of the whole or a part of the premises for a time less than the remainder of the term, so that no privity of estate is created between the lessor and the subtenant, the covenant would be ineffectual for the lessor's protection, if he could not proceed on the ground that it applies as well to an unlawful use by a subtenant as by the original lessee. We are of opinion that the agreement not "to make or suffer" an unlawful use of the premises must be interpreted as a stipulation that there shall be no unlawful use by the original lessee, or by any person who is occupying under him. It is easy for the lessee to control the use of the property, and to protect the interests of the lessor and of himself in this particular. With this interpretation, effect is given to the word "suffer." It may not be reasonable to hold that the covenant makes the lessee liable for an unlawful use of the property by...