delivered the opinion of the court.
If a corporation has power to hold real estate for any purpose, a deed to it passes the title of the grantor; and whether it exceeded its powers in accepting the conveyance is a question which can be raised only by the state. Cooney v. Booth Packing Co., 169 Ill. 370.
For the purposes of this litigation it must, therefore, be assumed that appellee has^the legal title to the premises under consideration.
An assignee of a lease, in the absence of any restraint in the instruments under which he became a lessee, can reassign to whomever he choose, be he ever so irresponsible, and thus relieve himself of responsibility for future accruing rent. Ready v. American Brewing Co., 60 Ill. App. 501.
In the present case appellant claims that he had a right to and has re-assigned and thereby absolved himself from all obligation under the lease as to rent accruing after the assignment by him.
In the lease there is a clause forbidding assignment, without the written consent of the lessor. Consent to the assignment to Springer having been given, he-insists that the lease thus became assignable indefinitely without further assent hy Harding. In agreeing to the assignment to Springer the lessor distinctly provided that no further assignment should be made without his written consent. We see no reason why he might not thus restrict further assignments. Springer took the lease with full knowledge of this restriction and it is binding upon him. Kew v. Trainor, 50 Ill. App. 629; same v. same, 150 Ill. 150; Williamson v. Williamson, L. R., 9 Ch. Appeal Cases, 729; Haywood v. Silber, L. R., 30 Ch. Div. 404.
Such restriction is not a contract which the law forbids parties to agree to.
The chancellor saw and heard the witnesses who testified as to the alleged assignment to Benjamin E. Harris and as to the value of the property.
When the trial court sees and hears the witnesses while they are orally giving their testimony before it, the findings of the court upon questions of fact will not be set aside on appeal unless such findings are clearly and manifestly against the preponderance of the evidence. Lane v. Lesser, 135 Ill. 567-573; Coari v. Olsen, 91 Ill. 273; Loucheim v. Seyfarth, 49 Ill. App. 561.
In the present case it appears that notwithstanding the making and recording of an assignment of the lease by Springer, he has continued and still is in control of the premises; he says that he is collecting rent thereof and paying rent to the owner of the premises merely as agent for his assignee, Harris. Such continued control, collection and payment, as well as the absence of evidence showing that Harris has ever done anything more than to receive the assignment, give his note for $500 therefor and in a short time receive it back, tends to sustain the finding of the chancellor in this regard. It is true that whether Harris paid anything or was paid to take the assignment is, in a sense, immaterial, but upon the question as to whether there was an actual transfer by Springer of all his interest in the lease, all the facts attending such alleged transfer may be considered by the chancellor.
We see no sufficient reason for setting aside his conclusion as to either of these disputed matters. Nor are we of the opinion that a landlord in case of an attempted assignment by a lessee of a lease containing a restriction against assignment must either acquiesce in the attempted assignment and recognize it as valid, or proceed to forfeit for violation of covenants. If such were the case an assignee of a lease could always avoid the restriction; as either the lessor must recognize the validity of the attempted assignment or forfeit the lease and thus rid the assignee of the obligation to pay future accruing rent.
That an invalid assignment is not void but voidable only, that is, that a landlord may waive the restriction inserted for his benefit, is undoubtedly the case (Webster v. Nichols, 104 Ill. 160), but a landlord, although he may have a right so to do, is not bound to declare a forfeiture for breach of a covenant; on“ the contrary, he may insist upon a tenant fulfilling his obligations.
Whether the court would, after it had substantially determined upon its decree, allow an amendment of the bill, was a matter of discretion.
As between McCabe and Springer, the latter did become, by the assignment to him, liable for all taxes and assessments, liens on said premises; this he directly agreed to by accepting the assignment with such agreement therein. The assent of Harding to the assignment to Springer reads, “and the said assignment to Springer is to be subject wholly to each and every of the covenants, conditions and provisions of said lease.”
This, it is contended by appellee, with the acceptance by Springer, amounted to a covenant by him to perform all the covenants of the lease during the entire term thereof. The decree finds that Springer, by accepting the assignment, became bound to perform the covenants of the lease as fully as McCabe was bound by the lease.
The covenants of the lease to be performed by the lessee are substantially all for the payment of rent, or that which is equivalent thereto. So long as a privity of estate exists between appellant and appellee, so long is appellant bound to pay the rent; if he can rid himself of the lease, destroy the privity of estate, he will, as between himself and the owner of the estate, be no longer bound to pay rent; this he can do by making a valid assignment and obtaining thereto the assent of the owner of the legal title to the premises. Consolidated Coal Co. v. Peers, 166 Ill. 361.
The decree of the Superior Court is therefore modified by striking therefrom the finding that Springer became, by accepting the assignment, bound to perform the covenants of said lease as fully as McCabe was bound by the lease; otherwise the decree is affirmed.