the whole, except it be made and accepted upon some new consideration. It is not found that there was any new consideration in this case. All that appears is, that an account was made out for the rent from July 1 to September 30, at the new rate, and that this account was receipted by Mr. Lovett after payment. Upon this finding, therefore, in the absence of anything more showing that the reduction in the rent of the first year was part of the agreement to continue the lease beyond the year upon new terms, the petitioner will be entitled to judgment for rent at the rate of $250 a month, from June 30 to August 23, 1862, that being the balance remaining after deducting payments made.

$32.

acceptance of reduced rates after the first year.

After the end of the first year the case is different. The United States were not bound absolutely to keep the premises for a longer term than one year. After that they could make new terms or leave. The acceptance by Mr. Lovett of the reduced rates from that time, without objection, is conclusive evidence of his assent to a modification of the original agreement in this particular, in cons.deration of the continued occupancy by the United States. Having thus secured the occupancy he cannot now object to the agreement under which it was obtained.

$33. Where premises were let to the United States for all purposes, no damages can be recovered because of their use as a small-pox hospital.

2. As to the use for a small-pox hospital. Mr. Lovett originally offered the property to the government "for the purposes of a hospital;" and all the receipts for the rent expressly state that the property was being so occupied. No objection to such an occupancy was ever made; and, if there were nothing more, the presumption would be that the lessor expected the property was to be used for any and all hospital purposes that the necessities of the government for the time being might require. But the note of General Mansfield is broad enough to cover such an occupancy, for he expressly states that the hiring is to be "for all purposes." No recovery can be had upon this specification of claim.

$34. Where there is no express agreement to repair, the tenant is not answerable for accidental damages, nor is he bound to rebuild if the buildings are accidentally burned down or otherwise destroyed.

3. As to the destruction of a part of the buildings by fire. There was, as has been seen, no express agreement to repair in the lease. The implied obligation is not to repair generally, but to so use the property as to make - repairs unnecessary, as far as possible. It is in effect a covenant against voluntary waste and nothing more. It has never been so construed as to make a tenant answerable for accidental damages, or to bind him to rebuild, if the buildings are burned down or otherwise destroyed by accident. In this case it has not been found, neither is it claimed in the petition, that these premises were burned through the neglect of the United States. No judgment can, therefore, be rendered against the United States on this account.

$35. Damages done to property by the army and navy engaged in the suppression of the rebellion, before such property was rented by the United States, are not recoverable in the court of claims.

4. The destruction of the trees and fences, and the digging and carrying away of gravel and stone. Whatever injury was done to the property during the occupation previous to the agreement for the lease cannot be recovered for in this action. Mr. Lovett's proposition included an undertaking on the

by the

part of the United States to make good this loss; but his proposition was not accepted, and the case stands as if it had never been made. The obligations of the United States under the lease, as to the preservation of the property, relate only to the condition of the premises as it was when the term commenced. All damage done before that is clearly “damages army and navy engaged in the suppression of the rebellion," and on that account not recoverable in the court of claims. 13 Stat., 381. But damage after the lease commenced, and while the United States were actually in possession under it, occupies a different position. That comes within the contract by which the rights of the parties in this action are to be determined. As has been seen, that does not bind the United States to make good any loss which necessarily results from the use of the property, but only such as results from the want of reasonable care in the use. It binds them not to commit waste or suffer it to be committed. If they fail in this they fail in the performance of their contract, and are answerable for that in the court of claims, which has jurisdiction of "all claims founded upon any contract, express or implied, with the government of the United States, which may be suggested to it by ȧ petition filed therein." Rev. Stat., § 1059; 10 Stat., 612, § 1. If there had been in this lease an express agreement to repair, certainly it could not have been successfully claimed that the court of claims would not have had jurisdiction to award damages for a failure to rebuild after the fire, even though the fire was caused by the soldiers while in the hospital for treatment. But the implied obligation as to the manner of the use is as much obligatory upon the United States as it would be if it had been expressed. If there is a failure to comply with the agreement in this particular, it is a breach of the contract, for which the United States consent to be sued in the court of claims. All depends upon the contract. Without that, the jurisdiction does not include actions for damages by the army; with it, damages contracted against may be recovered as for a breach of the contract.

$36. The destruction of ornamental trees, the tearing down of fences and walls, and the quarrying of stone and digging of gravel by the tenant is voluntary waste, within the implied agreement not to commit waste, and the tenant is liable therefor.

It appears in the finding that during the occupancy under the lease ornamental trees were destroyed; fences and walls torn down, and the materials used for sidewalks and the erection of other buildings, or carried away; and that stone was quarried and gravel dug from a stone-quarry and gravel-pit on the premises, and taken away. This was voluntary waste, and within the prohibition of the implied agreement in the lease. For this the court of claims. can award compensation in this action. The amount of this damage has zot been found.

5. The account, as stated in the quartermaster-general's office. This does not conclude the United States. It was a mere adjustment of the accounts by one of the bureaus in one of the departments of the government, rejected by the accounting officers of the treasury, and never paid. Certainly this can have no binding effect upon the United States.

The judgment must be reversed, and the cause remanded, with instructions to render judgment against the United States for the rent of the premises from June 30 to August 23, 1862, at the rate of $250 per month, and for the damages done to the property other than the destruction of the house by fire during the occupation of the United States under their lease, except to the

extent that the same necessarily resulted from the use of the premises by the soldiers of the army of the United States for the purposes of a hospital and camp-ground; and it is so ordered. (a)

BEALL v. WHITE.

(4 Otto, 382-391. 1876.)

APPEAL from the Supreme Court of the District of Columbia.
Opinion by MR. JUSTICE CLIFFORD.

STATEMENT OF FACTS.-Landlords leasing real property in this District have a tacit lien upon such of the personal chattels of the tenant upon the premises as are subject to execution for debt, commencing with the tenancy, and continuing for three months after the rent is due, and until the termination of any action for such rent brought within said three months. 14 Stat., 404; Fowler v. Rapley, 15 Wall., 328; Webb v. Sharp, 13 id., 14.

Sufficient appears to show that the executors of Alpheus Middleton, deceased, and Benjamin Beall, the owner of the other undivided half, on the 5th of March, 1867, leased the hotel at the corner of Pennsylvania avenue and Sixth street west, then known as the Clarendon Hotel, to George W. Bunker and William H. Crosby, for the term of five years from the 1st day of April next ensuing, at the yearly rent of $4,000, payable in monthly instalments the last day of each month, with the proviso that if the rent or any part thereof shall be in arrear and unpaid for the space of thirty days, the tenancy, upon notice thereof being given in writing to the lessees, shall cease and determine, and the same shall be and become a tenancy at will, determinable as prescribed in the act of congress.

Covenants were also contained in the lease by both parties. On the part of lessees, for the payment of rent during the term and in the mode prescribed; that they would not let or sublet the demised premises without the written consent of the lessors; and for the peaceful surrender of the premises at the end of the term or additional term. Reciprocal covenants were also made by the lessors for quiet enjoyment, for the renewal of the lease for another term of five years, if the lessees made written application for the same within the period therein specified.

Under that instrument the lessees entered into possession of the premises, purchased necessary furniture, and commenced the business of hotel-keeping, the name of the house being changed to Bunker's Avenue Hotel. At the date of the lease Thomas M. Plowman was a silent partner with the lessees in the business; and it appears that Crosby, on the 2d of October in the following year, sold and assigned his interest in the lease and furniture to Bunker and Plowman, his copartners.

Negotiations took place for the enlargement of the hotel; and, in December following, an adjoining tenement belonging to Benjamin Beall, in his own right, was leased to Bunker & Plowman, at the yearly rent of $1,300, payable monthly, the same having previously been altered and remodeled for the purpose at great expense, and was then fitted up with the necessary furniture. Five days after the commencement of the lease, to wit, April 6, in the same year, the lessees gave a deed of trust upon all the furniture then in the hotel (a) Reversing Lovett v. United States,* 9 Ct. Cl., 479.

to Orestes B. Dodge, trustee, to secure two notes of even date with the deed, each for $1,250, payable in nine and twelve months. When William H. Crosby sold and assigned his interest, Bunker & Plowman on the same day, to wit, October 2d, in the same year, gave a deed of trust to Samuel L. Phillips, trustee, upon all the furniture then in the hotel and all additions to the same, and all furniture to be placed in the Beall tenement, then being remodeled, and also upon the demised term and any further term the grantors may obtain in the Beall property, to secure two notes of even date, each for the sum of $3,500, payable in six and twelve months, in favor of William H. Crosby, for his interest in the lease and furniture.

Bunker & Plowman, on the 17th of April following, conveyed all their leasehold interest in the tenements, then called the St. James Hotel, together with all the furniture therein, to Samuel L. Phillips, trustee, to secure a continuing credit given by Beall & Baker to the grantors, in the amount of $5,000, to continue for two years. On the 20th of December in the same year the same grantors gave another deed of trust to Elias E. White, trustee, to secure a further indebtedness to Beall & Baker in the sum of $3,044.77, as appears by the answer.

Two of the notes secured by the deeds of trust, each payable in twelve months, are claimed by the Freedman's Savings and Trust Company, one being secured in the first trust deed and the other in the second, both notes having been taken by the bank when overdue. Mention should also be made that the same grantors, on the 10th of April, two years later, assigned their leasehold interest and all the furniture in the hotel to John Spicer, and, late in the same month, put him in possession, the original lessors refusing to recognize him as tenant. Rent was subsequently paid, but was received and receipted as due from Bunker & Plowman.

Suits in attachment on two of the notes were brought for rent on the 29th of August in the same year, and two other similar suits were instituted for similar causes near the close of the year, in which chattels upon the premises, including both tenements, were seized, and judgments of condemnation were duly rendered.

Enough appears to show that Bunker & Plowman were indebted to Beall & Baker, under the deeds of trust executed for their benefit, in the sum of $10,000, and that it was at their instance that the trustees proceeded to enforce the deeds; that the property was sold by the trustees under the several deeds of trust, with the consent of Spicer; and that the trustees then filed their bill of interpleader against Beall and Beall & Baker, and the Freedman's Savings and Trust Company, for the distribution of the fund.

Process was served, and the respondents appeared and filed an answer. Proofs were taken, the parties heard, and the court entered a decree that the deeds of trust are entitled to priority of satisfaction out of the fund in the hands of the complainants as against the rents to the landlord. Such being the final decree in the court of appeal, Beall & Baker, by special leave, appealed to this court, and assign for error the decree of the court below, adjudging that the deeds of trust are entitled to priority of payment as against the lien of the landlord.

Priority in favor of the first deed of trust cannot be claimed, unless the proposition of appellees can be sustained, that the first tenancy ended when William II. Crosby, with the consent of the lessors, sold and assigned his in

terest in the lease and furniture to Bunker & Plowman, or when the latter in turn assigned their leasehold interest in the demised premises and the furniture in the hotel to John Spicer. Suppose the original tenancy was unaffected by those events, it follows that the claim in favor of the first deed of trust is unfounded, as the record shows that the tenancy commenced before the deed was executed, and the recitals in the deeds showed that the chattels were upon the premises.

$37. Landlord's lien.

Without more, these remarks are sufficient to show that the court below erred in that regard, if the original contract of lease continued in force unaffected by the described assignments. Grant that, and it follows that the decree under review is also erroneous in respect to the claim made in favor of the other deed of trust, for the same reason, that the tenancy commenced eighteen months before the deed was executed. Nor can the appellees derive any benefit from the fact that the deed purports also to convey chattels to be acquired in the future and placed in the hotel. Liens of the kind, arising under the act of congress, attach at the commencement of the tenancy, or whenever personal chattels, owned by the tenant and subject to execution for debt, are brought on to the premises. Statutory liens have, without possession, the same operation and efficacy that existed in common law liens where the possession was delivered. Personal chattels on the premises, sold in the ordinary course of trade, without knowledge of the lien, are not subject to its operation, or, in other words, the lien in respect to such sales, where the goods are removed from the premises, is displaced, and the purchaser takes a perfect title to the property discharged of the lien. Webb v. Marshall, 13 Wall., 15; Grant v. Whitwell, 9 Ia., 153; Doane v. Garretson, 24 id., 351; Marr v. Sheffner, 2 East, 523; Burton v. Smith, 13 Pet., 483; Fowler v. Rapley, 15 Wall., 336.

38. Courts of equity in certain cases give effect to a mortgage of property to be acquired subsequently, but only where no rule of law is infringed, and the rights of third parties are not prejudiced.

Beyond question, the remarks made are sufficient to show that the lien of the landlord, so far as respects the chattels on the premises, is entitled to priority over the deeds of trust, unless the proposition of the appellees, that the statutory lien was displaced by one or both of the subsequent assignments by the lessees.

Before examining that question, it is proper to consider to what extent, if at all, the rights of the parties are affected by the terms of the second deed of trust, which purports to convey property subsequently acquired by the grantors and placed on the demised premises. Courts of equity will in certain cases give effect to a mortgage of property to be acquired subsequently, where no rule of law is infringed and the rights of third persons are not prejudiced. Pennock v. Coe, 23 How., 117 (CONV., §§ 1305-9).

Grants or conveyances of the kind may, in certain cases, be valid, subject to those conditions, or, to speak more accurately, the law will permit the grant or conveyance to take effect upon the property when it is brought into existence and belongs to the grantor, in fulfillment of an express agreement, if founded on a good consideration, and it appears that no rule of law is infringed and the rights of third persons are not prejudiced. Story, Eq. Jur. (9th ed.), § 1040; Dunham v. Railway Company, 1 Wall., 254 (CONV., §§ 155758); United States v. New Orleans Railroad, 12 id., 362 (Conv., §§ 1310–14).