JEAN BRANGER v. JEAN P. MANCIET, 30 Cal. 624

By the Court, Sawyer, J.: This is an action by the tenant against his landlord to recover the cost of repairing the buildings on leased premises partially destroyed by fire “occasioned by the act of an incendiary, and by some person other than said plaintiff, or said defendant.” Ho undertaking that the house upon the premises leased should continue to remain there during the term was implied from the fact that in designating the premises the lease described a certain lot of land, “ together with the improvements thereon, consisting of a building known and designated by the name of ‘ Hotel de France.’ ” (Howard v.

Doolittle, 3 Duer, 465 ; Sherwood v.

Seamen, 2 Bos. 130.) The lease contained a covenant on the part of the lessor, that the lessee “ shall and may, at all times during the said term hereby granted, peaceably and quietly have, hold and enjoy the said demised premises without any manner of let, suit, trouble or hindrance of or from the said party of the first part, his heirs or assigns, or any other person or persons whomsoever,” and it is insisted that, under this covenant, the lessor was bound to protect the lessee against.-all manner of trespasses and malicious acts of strangers having no relation with the lessor and setting up'no claim to the premises, and that the lessor was bound by the covenant to repair the building partially destroyed by fire set by an incendiary.

But we think no such broad construction can be given to the covenant. It is not in the ordinary course of human transactions to contract generally for the protection of others against the crimes of all evil disposed persons, and it would be unreasonable to give the covenant in question so broad a signification. Besides, this is only the ordinary covenant for quiet enjoyment, containing no words not embraced in the long established form of that covenant, while some of the words in the old form are omitted ; and the construction of this covenant has long been settled by judicial decisions.

The form of this covenant, as given in Bawle on Covenants for Title, is as follows: “And that it shall be lawful for the said grantee, his heirs and assigns, from time to time, and all times hereafter, peaceably and quietly to enter upon, have, hold, occupy, possess and enjoy the said land's and premise's hereby conveyed, or intended so to be, with their, and every of their, appurtenances, and to' have, receive and take the rents, issues and profits thereof, to and for his and their use and benefit, without any let, suit, trouble, denial, eviction, interruption, claim or demand whatsoever of, from or by him, the said grantor, or his heirs, or any other person or persons whomsoever.” This covenant contains all the words, or words of equivalent import, contained in the lease in question, even the words “ or any other person or persons whomsover,” upon which appellant relies.

It is settled tl>at this covenant does not extend to tortious acts of strangers. The dóctrine, as now established, is well stated by Rawle, as follows : “ There weré several old authorities which held that'a covenant thus absolutely expressed extended to all interruptions and disturbances whatsoever, whether lawful or tortious, and although authority was not wanting in opposition to this doctrine, the law seems not to have been settled until the case of Hayes v. Bickerstaff, Vaughan, 118; 2 Mod. 35.

That case decided that the covenant, however generally expressed, must be understood as applying merely to the acts of those claiming by title. For in the first place it would be unreasonable that a man should covenant against tortious acts of strangers, which he could not foresee or prevent; secondly, the law gives the covenantee a remedy against the wrongdoer; thirdly, the covenantee might thus have a double remedy and receive a double compensation; and fourthly, it would enable him to injure the covenantor by colluding with a stranger to make a tortious entry.

These unanswerable reasons have since been consistently acquiesced in, and the rule in Hayes v. Bickerstaff has long been recognized as settled law on both sides of the Atlantic.” (Rawle on Cov. for Title, 184, et seq., and authorities cited in notes.) No error appearing in the record, the judgment is affirmed.