Jackson ex dem. Hardenburgh v. McClallen
New York Supreme Court
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.
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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,…
1Opinion of the Court
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…
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