Chipman v. Emeric
California Supreme Court
Appeal from the District Court of the Third Judicial District, Alameda County. Action brought to recover the possession of a portion of a tract of land, described in the complaint as the Encinal de Sa?i Antonio. In February, 1851, Antonio M. Peralta leased to Payot & Depassier, the premises in dispute, for the term of six years.
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Appeal from the District Court of the Third Judicial District, Alameda County. Action brought to recover the possession of a portion of a tract of land, described in the complaint as the Encinal de Sa?i Antonio. In February, 1851, Antonio M. Peralta leased to Payot & Depassier, the premises in dispute, for the term of six years. The provisions of the lease were: First, That the lessees should not assign to any person without obtaining the consent of the lessor: Second, That the lessees were to build a wharf on the land: Third: That the lessor should have what land he wanted for cultivation.…
1Opinion of the Court
Heydenfeldt, J„ delivered the opinion of the Court.
Murray, C. J., concurred.
The appellants centend that the lease is void, for three reasons:
1. The assignment to Hibberd, without appellant’s consent.
'2. The failure to build a wharf.
2. The refusal to let plaintiffs have the amount of land they demanded.
As to the first point, the Court below found as a fact, that Peralta, *51She first grantor, had consented to the assignment oi the lease to Emeric. "This, if it was even necessary, is sufficient to abrogate the covenant against assignment. It is questionable whether, in any case, Such a covenant…
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