Blackmore v. Boardman

28 Mo. 420

• Court: Supreme Court of Missouri
• Decided: March 15, 1859
• Status: Published

Opinion

Richardson, Judge,

delivered the opinion of the court.

The numerous authorities cited by the defendant’s counsel establish in his favor the first two propositions presented in the statement. As the law discourages perpetuities, it does not favor covenants for continued renewals ; but, when they are clearly made, their binding obligation is recognized and will be enforced. The covenant for renewal is only an incident to the lease, and as it can not be passed without the principal, the conveyance of the principal by a proper description will necessarily carry the incident. They are inseparable, and a right of action can not exist in favor of a person claiming the benefit of the covenant without any right to the possession of the leasehold; but the covenant, being annexed to the estate, runs with it, and can not be retained by itself or assigned or severed so as to give an independent cause of action. A sale of the land under execution will pass to the purchaser all the covenants that run with it as effectually as if he had received a conveyance from the lessee; for as the purchaser, after he acquires possession, is bound to pay the rent and in that way assumes the burdens of the lease, he has the right to take advantage of the covenants that touch and concern the thing demised, which enhance the value of the estate.y

The parties agree that the application for renewal was in proper form, and, as the minutes of the board of directors show that the notice was before the board on the 11th of August, at the second meeting held after it had been left by Kurlbaum, we think his evidence was properly received. Notice left with a man about the office who had no authority to receive it of course would not bind the Public Schools, but, as the directors are not supposed to be all the time in session, it would seem that tlie secretary was the proper person with whom such applications should be left. It would be gross neglect in the defendant if'he had left the notice with a chance man about the.-office, and had not returned again to inquire whether it had been received; but the agent was told by the secretary a few days afterwards, and in ample time to have given another notice, that it had been received, and under such circumstances it would be a fraud on him to hold that he had lost his rights by his negligence. The parties have requested that the controversy between them shall be determined in this court in view of all the equities of the case, and, as the admission of the deceased secretary would certainly be competent in a proceeding by the defendant against the board of Public Schools to have specified performance of the covenant for renewal, we have less hesitation in deciding that the evidence was admissible in this suit. The other judges concurring, the judgment will be affirmed.