« EelmineJätka »
than his own, the under lessee covenanting to pay rent to the lessee; it was holdenm, that the executor of lessee might sue the under lessee for rent accruing during the continuance of the term; for the deed operated as a demise, and the covenant was for a payment in the nature of rent. Executors", though not named, may sue on a covenant made with testator, in reference to a chattel. Upon a covenant by lessee not to fell timber or cut wood, the executor may maintain an action for a breach in the lifetime of his testator o.
3. By Assignee.—Assignee of part of the reversion of all the land demised P, may take advantage of the covenants contained in an indenture of demise; for he is an assignee within the stat. 32 H. 8. c. 34. As the assignee of a term is bound by covenants which run with the land, so he may take advantage of them 9. If a man demise or grant land to a woman for years", and the lessor covenant with the lessee to repair the houses during the term, the woman takes husband, and dies, the husband shall have an action of covenant as well on the covenant in law upon the words “ demise or grant,” as upon the express covenant. The law is the same with respect to tenant by statute merchant, or statute staple or elegit, of a term, and with respect to him to whom a lease for years is sold by force of any execution, who shall have an action of covenant in the like case as a thing annexed to the land, although they come to the term by act of law. So the executor of B. s the executor of A. is entitled to the benefit of a covenant made with A. and his assigns, for he is the assignee in law of A. N. The word assignee comprehends the assignee of the assignee, the executors of the assignee of the assigneet, and the assignee of the executor or administrator of the assignee. But covenant does not lie by an assignee for a breach done before his timeu. A mortgagee died possessed of the residue of a mortgage term, subject to the usual proviso of its being determined on payment of the money on a given day; the money was not paid at the day, and afterwards the mortgagee died, having bequeathed the money to the plaintiff by will, and appointed him his executor: it was held, that the plaintiff could not sue in covenant as assignee of the term, because this was a personal covenant, collateral, and not running with the land, and because it was broken in the lifetime of the testator.
m Baker v, Gostling, 1 Bingh. N. C. r Spencer's case, 5 Rep. 17. a. 5th Re19.
solution. n Doe d. Rogers v. Rogers, 2 Nev. & s Chapman v. Dalton, Plowd. 284. a. Man. 550.
ante p. 482. o Raymond v. Fitch, 2 Cr. M. & R. 588. t Spencer's case, 5 Rep 17. b. p 1 Inst. 215 a.
u Lewes v Ridge, Cro. Eliz. 863. q Cro. Eliz 553
x Canham v Rust, 2 Moore, (C. P:)
Stat. 32 H. 8. c. 34.—The stat. 32 H. 8. c. 34. after reciting, that many temporal and religious persons had made leases and grants of land for life or lives, or for term of years, by writing under seal, containing conditions and covenants to be performed as well on the part of the lessees and grantees, their executors and assigns, as on the part of the lessors and grantors, their heirs and successors; and that by the common law no stranger to any covenant could take advantage thereof; but only such persons as were parties or privies thereunto; by reason whereof grantees of reversions, and grantees and patentees of lands lately belonging to religious houses, were excluded from any entry or action against the lessees and grantees, their executors and assigns, for breach of any condition or covenant, enacts, that all persons and bodies politic, their heirs, successors, and assigns, having any gift or grant of the king, of any lands or other hereditaments, or of any reversion of the same which belonged to any of the monasteries, &c. dissolved, or by any other means come to the king's hand, since the 4th day of February, A. D. 1535, or which at any time before the passing this act belonged to any other person, and after came to the hands of the king, and all other persons being grantees or assignees to or by the king, or to or by (26) any other person than the king, and their heirs, executors (27) successors, and assigns, shall have like
(26) It seems to have been the opinion of the court in Lee and Arnold's case, 4 Leo. 29. that the bargainee of a reversion, by bargain and sale, indented and enrolled, was an assignee within this statute, though he hath but an use by the act of the party, and the possession by stat. 27. H. 8.
(27) In respect of this word, it hath been holden, that an assignee of part of the reversion, as an assignee of the reversion for years, of all the estate demised, may enter for condition broken. Matures v. Westwood, B. R. H. 40 Eliz. Cro. Eliz. 599, 600. 667. Moor, 527. S. C. 1 Inst. 215. a. So the grantee, for life, of a reversion, is an assignee within this statute, and may enter for condition broken. Kidwelly v. Brand, Plow. 72. But the grantee of the whole estate, in reversion, in part of the thing demised, is not within the meaning of the statute; as if the reversioner in fee of four acres grants two acres in fee, the grantee cannot enter, because conditions cannot be apportioned by act of the party, 4 Leo. 27. But covenants may. See Twynam v. Pickard, 2 B. & A. 105, where it was adjudged, that covenant will lie by the assignee of the reversion of part of the demised premises against the lessee for not repairing such part.
advantages against the lessees, their executors, administrators, and assigns, by entry for non-payment of the rent, or for doing waste or other forfeiture (28), and by action only for not performing other conditions, covenants, or agreements expressed in the indentures of leases and grants, against the said lessees (29) and grantees; their executors, administrators, and assigns, as the said lessors and grantors, their heirs or successors, might have had. By s. 2. all lessees and grantees of land or other hereditaments, for terms of years life, or lives, their executors, administrators, or assigns, shall have like action and remedy against all persons and bodies politic, their heirs, successors, and assigns, having any gift or grant of the king, or of any other persons, of the reversion of the same lands and hereditaments so letten, or any parcel thereof, for any condition or covenant, expressed in the indentures of their leases, as the same lessees might have had against the said lessors and grantors, their heirs and successors."
The first section of the preceding statute gives to the assignee of the reversion two remedies, one, by entry for nonpayment of rent, doing waste, or other forfeiture; and the other, by action, for not performing other conditions, &c.; and as the remedy by entry, according to the construction, 1 Inst. 215 b. is confined to forfeitures by force of such conditions, as either are incident to the reversion, or for the benefit of the estate ; so it hath been resolved 4, that the remedy by action is confined to the breaches of such covenants, as relate to the thing demised, and not to collateral covenants. And on this ground, where the mortgagor and mortgagee of a term made an under-lease ", in which the covenants for the rent and repairs were with the mortgagor and
q Spencer's case, 5 Rep. 18. a.
cited and relied on in Whitton v. Peacock, 2 Bingh. N. C. 411.
(28) Although the words of the statute be for non-payment of the rent, or for doing of waste or other forfeiture, yet the grantees or assignees shall not take advantage of every forfeiture by force of a condition, but of such conditions only, as either are incident to the reversion, as rent; or for the benefit of the estate, as for keeping the house in repair, for making fences, scouring ditches, preserving woods, or such like, and not for the payment of any sum in gross, delivery of corn, wood, or the like. i Inst. 215. b. Moor, 876. pl. 1228.
(29) This statute does not extend to covenants upon estates tail. 1 Inst. 215. a. See also the preamble.
his assigns only; it was holden, that the assignee of the mortgagee could not maintain an action for the breach of these covenants; because they were not covenants running with the land, but collateral covenants, being entered into with a stranger to the land, that is the mortgagor, who had only an equity of redemption. If the estate in reversion s, in respect of which the condition or covenant was made, be extinguished, the condition or covenant is also extinguished : As where a lease was made for 100 years, and the lessee made an under-lease for 20 years, rendering rent, with a clause of re-entry; and afterwards the original lessor granted the reversion in fee, and the grantee purchased the reversion of the term; it was holden, that the grantee should not have either the rent, or the power of re-entry; for the reversion of the term, to which they were incident, was extinguished in the reversion in fee. Tenants in common of a reversion may maintain covenant against the assignee of the term for the recovery of arrears of rent, although it should appear, that at time of action brought, the reversion was out of the plaintiffs, they having granted it over, after the rent became duet N. In Glover v. Copey, B. R. Pasch. 3 W. and M. Carth. 205, it was adjudged, after two solemn arguments, by Holt,C.J. and the court, that the grantee of the reversion of copyhold lands was within the intention and equity of the preceding statute, which is a remedial law, and of great and universal use, and absolutely necessary as well for copyholders as others; and that by this construction of the statute the lords of copyhold manors could not be injured. A remainder-man is an assignee of the reversion within this statute : Devise to A. for life, remainder to B. for life, &c. with power to make leases for 21 years : A. leases for 14 years, by indenture, in which lessee covenants with lessor, his heirs, and assigns, for payment of the rent to lessor, his heirs, and assigns, for payment of the rent to lessor, and such other person as should be entitled to the freehold, &c. A. dies pending the term, and after the death of A. rent becoming in arrear, B. brings covenant *: held that it would lie, for B. is, within the meaning of the statute, an assignee of the reversion of that estate out of which the lease is granted. But where J. B. being seised in fee, conveyed to defendant and T. J., their heirs, and assigns, to the use that J. B., his heirs, and assigns, might have $ Moore, 94, pl. 232, recognized by u 3 Lev. 326. Skin. 305. S. C. See
Kenyon, C. J. delivering the opinion also Whitton v. Peacock, 3 Myl, & of the court in Webb v. Russel, 3 K. 325. T. R. 402, 3.
x Isherwood v. Oldknow, 3 M. and S. t Midgley and another v. Lovelace,
Carth. 289. 12 Mod. 45. S. C.
and take to his use a rent certain to be issuing out of the premises, and subject to the said rent, to the use of defendant, his heirs, and assigns; and defendant covenanted with J. B. his heirs, and assigns, to pay to him, his heirs, and assigns, the said rent, and to build, within one year, one or more messuages on the premises, for better securing the said rent'; and J. B. within one year, demised the said rent to plaintiffs for 1000 years : it was holden y, that covenant would not lie at the suit of the plaintiffs for non-payment of the rent, or for not building the messuages, for here was neither privity of contract, nor privity of estate; the rent was reserved out of the original estate; the covenant was a covenant in gross. Lessee for years assigns over his term by indenture to J. S. 2; and, in the same deed, he covenants that J. S. and his assigns shall enjoy the land during the term without interruption from any person; after which J. S. assigns over the term by parol, and the assignee being disturbed brought an action of covenant; and adjudged, that it well lies; although the assignment was not by writing, because the assignee was privy in estate. But now by stat. 29 Car. 2. c. 3. s. 3. leases, estates, or interests, either of freehold, terms of years, or uncertain interest, cannot be assigned, unless by deed or note in writing signed by the assignor or his agent, or by operation of law. A person to whom an apprentice is assigned according to the custom of the city of London , cannot maintain covenant on the indenture of apprenticeship to which he is not a party; because custom cannot make an assignee, so as to entitle him to an action.
V. Against whom the Action of Covenant may be maintained :
1. Against Heir.-An action of covenant will lie against the heir on a covenant by his ancestor for himself and his heirs, as well as an action of debt will lie against the heir
y Milnes v. Branch, 5 M. and S. 411. 2 Awder v. Nokes, Cro. Eliz. 436. re
cognized and briefly stated in 3 Rep.
a Barker v. Beardwell, I Show. 4.