Rogers v. . Hall

42 S.E.2d 347, 227 N.C. 363, 1947 N.C. LEXIS 425

• Court: Supreme Court of North Carolina
• Decided: April 30, 1947
• Status: Published

Opinion

Barnhill, J.

This appeal poses one question for decision: Does the assignment of a lease contract breach a covenant therein not to sublet without the consent of the lessor? We are constrained to answer in the negative.

A covenant not to assign and a covenant not to sublet have the same general objective — the restriction of the common law right of alienation. Even so, they are by no means coextensive. Each has a distinctive meaning. Springs v. Refining Co., 205 N. C., 444, 171 S. E., 635; Millinery Company v. Little-Long Company, 197 N. C., 168, 148 S. E., 26; Hargrave v. King, 40 N. C., 430; Oil Co. v. Taylor, 79 A. L. R., 1374; 32 A. J., 289, 290, 331.

Such provisions in a lease contract are in restraint of alienation. 32 A. J., 296, 333. As such they are not looked upon with favor. 32 A. J., 296. Instead they are só construed as to prevent the restraint from going beyond the express stipulation. Millinery Company v. Little-Long Company, supra; Warren v. Breedlove, 219 N. C., 383, 14 S. E. (2d), 43; Temple Co. v. Guano Co., 162 N. C., 87, 77 S. E., 1106; Francis v. Ferguson, 55 A. L. R., 982; Chapman v. Gypsum Co., 85 A. L. R., 917; Anno. 79 A. L. R., 1379; 32 A. J., 297.

On the theory that a sublease and an assignment of a lease are so distinct that the mention of one does not include the other, the general rule is that an assignment of the lease is not a breach of a covenant against subletting. Millinery Company v. Little-Long Company, supra; 7 A. L. R., 246; Anno. ibid., 249; Oil Co. v. Taylor, supra; Anno. 79 A. L. R., 1379.

The lease contract under which defendants claim the right of possession contains no covenant not to assign. It is agreed they are now the owners thereof by mesne transfers from the original tenants. Therefore, on this record, plaintiff has failed to show cause for ejectment.

Furthermore, plaintiff, in her affidavit filed by way of complaint, G. S., 42-28, alleges that defendants entered into possession of the locus as her lessees and their term has expired. The averment is jurisdictional, Howell v. Branson, 226 N. C., 264, and she must prove her case as alleged. Rose v. Patterson, 220 N. C., 60, 16 S. E. (2d), 458; Peoples v. Fulk, 220 N. C., 635, 18 S. E. (2d), 147; Whichard v. Lipe, 221 N. C., 53, 19 S. E. (2d), 14; Coley v. Dalrymple, 225 N. C., 67. This she has failed to do.

The judgment below is

Affirmed.