By the Court, It is urged that the prohibition to cut and sell wood in the condition relates to the thirty acres of woodland after-wards reserved, and that it was necessary to prove a breach of that provision, at least, in order to work a forfeiture; and further, that even if such breach was proved, as the right of entry is not given for it in the lease, the only remedy is by action of covenant. I am of opinion this is not the true import of the lease, as derived from the language of the parties.
The reservation of the thirty acres is absolute ; no part of it is to be cleared, or any timber cut therefrom. It was intended to be preserved entire for the benefit of the reversion, and could not be used by the lessee or-his assigns for fence or fire bote. Unless there were a sufficient supply for these purposes and every other during the term on the residue of the farm, the tenants would be obliged to procure materials elswhere at their own expense. Beyond the thirty acres, they could use the woodland for all necessary agricultural purposes. 2 Black. Comm. 122, 283. Whether cutting down timber and disposing of it in this country would be waste, at common law, depends upon circumstances, as is said in Jackson v. Brownson, 7 Johns. R. 233, “ must be left to the sound discretion of the jury, under the direction of the court, as in other cases.” If the premises [ 509 ] are wild and uncultivated, such use of them would be justified *to a reasonable extent. A covenant not to commit waste, must be construed with reference to the state of the property at the time of the demise. But the condition prohibiting the sale of any wood or timber operates, and was doubtless intended to operate, as an express restraint upon this general right, that might possibly otherwise be claimed to flow from the interest acquired under the lease. The farm was probably an old and improved one at the time, as may be inferred from the fact that it appears to have been under lease as early as 1743, and therefore it was important to secure, not only the thirty acres of wood land entire, but a prudent and economical use of the residue. Such is the natural tendency and effect of the restraint in the condition.
But the important question in the case is, whether this condition extends to and operates upon the assignee, he not being named: in other words, whether it attaches to and operates upon the estate, or is merely personal. If it attaches to the estate, it then passes along with the term, and the assignee is bound as a privy in estate, the same as if named.
It is not material to inquire, particularly, whether the result would be different according as we regard the words in the light of a condition strictly or as a covenant: a clause of re-entry being expressly annexed to the
*Besides, it is quite clear that the clause should be considered [ *510 ] a covenant in express terms, as well as a condition. If one make a lease for years by indenture, provided always, and it is covenanted and agreed between the parties that the lessee shall not alien, this is both a condition and covenant. Bacon’s Abr. tit. Condition, let. G. Co Litt. 203, b. Shep. Touch. 122. 9 Moore, 46. 8 Barn. & Cress. 308, Bayley, J. We need only refer to the clause in question, to be satisfied that it falls directly within the principle of these authorities.
Then is it a covenant or condition that attaches to the estate, and binds the assignee, though not named ? A distinction was taken in Spence’s case, 3 Rep. 16, on this point, and which has been followed in all the subsequent cases : and that is, when the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is quoad modo annexed, and appurtenant to the thing demised, and shall go with the land and bind the assignee, although he be not named in express words ; but when the covenant extends to a thing not in being at the time of the demise made, it cannot be appurtenant or annexed to the thing which hath no being. (Various illustrations are there given not important to notice.) See also 9 Barn. & Cres. 505 ; 2 Chitty’s R. 482. Accordingly, upon this distinction, a covenant for quiet enjoyment, for farther assurance, for renewal, to repair, pay rent, to discharge the lessor of charges ordinary and extraordinary, to cultivate the lands in a particular manner, to reside upon the premises, to supply them with good water, not to carry on particular trades, &c. have all been held to bind the assignee, though he be not named. Comyn’s Landlord and Tenant, 257, and the cases there cited. Platt on Cov. 466, and cases cited. Covenants also relating to the cultivation of the land, such as liming and dunging it during the term, 10 Mod. 158, or to spend all the muck thereon, 3 Wils. 32, or to leave fifteen acres every year for pasture absque cultura, Cro. Jac. 125, fall within this class.
The nature of the covenants that attach to and pass with the estate was very fully examined, and all the authorities deferred to [ *511 ] by Cowen, J. in Norman v. Wells, 17 Wendell, 136. A cov
I am therefore of opinion a new trial should be granted.
New trial granted.