John D. Johnson v. E. J. Gurley et al., 52 Tex. 222

Bonner, Associate Justice. The gravamen of plaintiff’s action is an alleged forfeiture of the lease on the part of the' defendant by reason of the cutting of growing timber upon the land in controversy, in violation of the terms of the contract under which he held. This involves the proper construction of that portion of the agreement which relates to the use of the timber, so as to ■determine whether it is a covenant between the parties, or a .condition, or a conditional limitation.

A.covenant is an agreement duly made between the parties to do .or not to do a particular act. (Taylor’s Land, and Ten., sec. 245.) For ‘breach of mere covenant the lessor has no right of reentry, unless, as is not the case here, there is an express clause in the agreement to this effect, but has the right to sue for damages only. (Taylor’s Land, and Ten., secs. 290, 291; 1 Wash, on Real. Prop., 3d ed., marg. p. 320; Dennison v. Read, 3 Dana, (Ky.,) 586; Brown’s Administrators v.

Bragg, 22 Ind., 123.) A condition is a qualification annexed to an estate by the grantor, whereby .it ,may -created, enlarged, or defeated upon an uncertain event. (Taylor’s Land, and Ten., sec. 271; 1 Wash, on Real.

Prop., 3d ed., marg. p. 316.) The lessor may, without an express clause to that effect, take advantage of a breach of condition by reentry or ejectment. (Taylor’s Land, and Ten., sec. 291.) But the breach of a condition does not, of itself, divest the estate of the lessee, but to do this the lessor must, by ex-press act, take advantage of the same by reentry, or that which in law would be equivalent thereto. (1 Wash, on Real. Prop., 3d ed., marg. p. 319; Taylor’s Land, and Ten., sec. 273; Fifty Associates v. Howland, 11 Met, 99; Elliott v.

Stone, 1 Gray, 575.) A conditional limitation marks the period or event which is to determine the estate without entry or claim, and no affirmative act is necessary to vest the right in the grantor or him who has the next expectant interest. (Taylor’s Land, and Ten., sec. 273; 2 Wash, on Real. Prop., 3d ed., marg. p. 459.) In case of doubt as to the true construction of a clause in a lease, it should be held to be a covenant, and not a condition or limitation, as the law does not favor forfeitures. (1 Wash, on Real.

Prop., 3d ed., marg. pp. 319, 320; Taylor’s Land, and Ten., sec. 273; 4 Kent’s Comm., marg. p. 129; Wheeler v. Dascomb, 3 Cush., 288.) We are of opinion that the clause under consideration is neither one of limitation iior condition, but equivalent simply to a covenant or agreement between the parties, to the effect that the lessors agreed to give to the lessee the right to the use of such timber as might- be necessary for the purposes of the lease, and the lessee agreed not to cut and sell the growing timber. (Spear v. Fuller, 8 N. H., 174; Wheeler v.

Dascomb, 3 Cush., 285; Taylor’s Land, and Ten., secs. 279, 489.) The breach of this covenant did not forfeit the estate of the defendant under the contract, or give the plaintiff" the right to sue him otherwise than for damages. The contract in this case partakes both of the nature of a lease and of a conditional sale, with the right to demand compensation for improvements, and was clearly not a contract which the lessors, as in a tenancy at will, could determine by mere notice to quit.

Certainly they could not do so without an equitable adjustment of the rights of the parties growing out of the improvements made by the defendant, and the damages, if any, from the breach of his covenant. [Opinion delivered November 21, 1879.] We are of opinion, however, that there was error in not granting a new trial, because the verdict of the jury was excessive as to rents. It is not necessary to dispose of the other questions raised, as they will probably not arise on another trial. Beversed and remanded.