covenant to build a house on the land of the lessor which is not parcel of the demise; or to pay any collateral sum to the lessor, or to a stranger'; the assignee, though named, is not bound by such covenant; because the thing covenanted to be done, is merely collateral, and not in any respect touching or concerning the thing demised (30). In order to bind the assignee, even though named, it is essentially necessary, that the thing covenanted to be done, or not to be done, should directly affect the nature, quality, or value of the thing demised, or the mode of occupying it: Hence, where in a lease of lands, with liberty to make a water-course, and erect a mill, the lessee covenanted for himself and his assigns, not to hire persons to work in the mill, who were settled in other parishes, without a certificate of their settlement: it was holden, that this covenant was not binding on the assignee of the term: because the state of the thing demised would be the same at the end of the term, whether the parish were more or less burdened with poor, and although the value of the reversion would not be so great if the poor's rate were increased, yet that burden would be increased by a collateral circumstance: and the work to be done being the same, whether it were done by workmen from one parish or another, could not affect the mode of occupation. 4. If a covenant relates to personal goods, as on a demise of sheep for a certain time, if the lessee covenants for himself and his assigns to re-deliver the sheep at the end of the time, and the lessee assign the sheep over, this covenant (31) will not bind the assignee, though named, because there is not any privity. In the case of realty there subsists a privity between the lessor and the lessee, and his assigns, in respect r Mayho v. Buckhurst, Cro. Jac. 438. s Mayor of Congleton v. Pattison, 10 East, 130. recognized in Easterby v. Sampson, 1 Cro. & J. 118. See 6 t Spencer's case, 3d Resolution. (30) It is a substantive, independent agreement, not quodam modo, but nullo modo annexed or appurtenant to the thing leased. Per Wilmot, C. J. delivering the opinion of the court in Bally v. Wells, Wilmot, 345. See this doctrine discussed by Tindal, C. J. in Flight v. Glossop, 2 N. C. 131. (31) "The covenant in this case is not collateral, but the parties, that is, the lessor and assignee, are total strangers to each other, without any line or thread to unite and tie them together, and to constitute that privity, which must subsist between debtor and creditor to support an action." Wilmot, C. J. in Bally v. Wells, Wilmot, 345. of the reversion, but in the case of a lease of personal goods, there is not any reversion, but merely a chose in action in the personalty, which cannot bind any but the covenantor, or his personal representative (32). A lessee of tithes covenanted for himself, his executors, administrators, and assigns, not to let any of the farmers occupying the estate, out of which the tithes arose, have any part of the tithes without the consent of the lessor; and further covenanted for himself and his assigns to find and allow to the lessor sufficient wheat straw for thatching any of the buildings then in lessor's occupation; the lessee assigned to the defendant, who suffered several of the farmers to retain part of the tithes without the lessor's consent. An action having been brought against the defendant for this breach of the covenant, and a verdict for the plaintiff, it was moved, in arrest of judgment, that the action would not lie against the defendant, inasmuch as the covenant was merely personal and collateral, binding the lessee only; that tithes were incorporeal, lying in grant, and which therefore would not endure such an annexation of covenant. But the court were of opinion, that there was not any difference between land and tithes as to the annexation of covenants; that this covenant was not a mere collateral covenant, but related to the thing demised, materially and essentially tending to preserve it, and as such, obligatory on the assignee being named, and there being a privity in respect of the reversioner, the lessor. So where a lease contained a demise of all mines and minerals then opened or discovered, or which might during the term be opened or discovered, in or under certain moors or waste lands, and also all smelting mills then standing upon the lands, with full liberty to sink shafts there, and to build thereon any mills or other buildings requisite for working the mines; the lessor afterwards granted his reversion to A., who by will devised the same to the plaintiffs; it u Bally v. Wells, M. 10 G. 3. C. B. 3 Wils. 25. Wilmot, 341. S. C. (32) "To carry the lien of a personal obligation over to an assignee, and to make him the object of an action at the suit of a person with whom he did not originally contract, he must in all cases be named, and there must also be a privity between the assignee and the person to whom he becomes engaged; and the covenant must respect the thing leased. The chose in action, which of itself is not assignable, loses that property under those circumstances, and in a waiting dependent state follows its principal; and assignees of leases become liable to assignees of reversions, and vice versa.”— Per Wilmot, C. J. ib. 345. was holden, that the covenant to build the new smelting mill (which was implied from the language of the deed) tended to the support and maintenance of the thing demised, and that the assignee of the reversion might therefore sue upon it. Covenant by lessee against the assignees of lessory. The lessee covenanted to leave all the trees he should plant during the term. The lessor covenanted for himself, his executors, and administrators, to pay for the trees at a fair valuation, by two persons to be named by each party, their executors, administrators, or assigns. The term expired. The defendants, assignees of lessor, refused to name an arbitrator, which was the breach assigned. On general demurrer to the declaration after argument, and time taken to consider, Lord Mansfield, C. J. delivered the opinion of the court, that the covenant to refer to arbitration did not run with the land; and therefore the assignees were not bound by it, on the authority of Spencer's case, the assignees not being named. So where a term is granted as a security for money lent on mortgage, the covenant in the indenture of mortgage to pay the money on a given day, is a personal and a collateral covenant not running with the land. Where lands are conveyed by A. to B.a, in fee, to the use of such person as C. shall appoint, and C. covenants for himself and his assigns to pay to A. a fee farm rent for the lands, and afterwards C., in pursuance of his power, makes an appointment to D.; D. the appointee cannot be sued on the covenant as the assignee of C.; for the appointee has not the estate of C., but is in by the original conveyance. A covenant which runs with the land b, e. g. a covenant to repair, is divisible; and will bind the assignee of parcel of the estate demised, quoad the repairs of such parcel. So where covenant was brought by the lessor against the assignee of the lessee for the non-payment of a year's rent. Defendant, as to the rent for half the year, pleaded an eviction during that time of a moiety of the premises by title paramount. On demurrer, the question was, whether x Sampson and another v. Easterby, 9 z Canham v. Rust, 2 Moore, 164. b Congham v. King, 1 Rol. Abr. 522. Sir William Jones, 245. S. C. Cro. Car. 221. S. C. recognized by the court in Stevenson V. Lambard, 2 East's R. 580. c Stevenson v. Lambard, B. R. T. 42 Geo. 3. 2 East's R. 575. d This ought to have been pleaded to a moiety of the rent for half a year. the rent was apportionable: it was holden, that the condition of the assignee was different from that of the lessee who was chargeable on the privity of contract, for the assignee was chargeable on the privity of the estate, and in respect of the land; hence the rent in question was apportionable; on the same principle as the rent of the lessee or assignee would have been in an action of debt or replevin. Where the lessee of a public-house covenanted for himself, his executors, and assigns, with his lessors (brewers,) to take all his beer of them or their successors in their said trade; and the lessors sold their trade and the public-house, with other premises, to third persons, who removed the plant, &c. to a distance of two miles, and there carried on the business of brewers; it was holden, that the trade of the lessors was thereby determined; and that their assignee could not take advantage of the covenant, on the assignee of the lessee purchasing beer from another brewer. Assignee of the term is not answerable for the breach of such covenants as were broken by lessee before he became assigneed; e. g. as where lessee covenanted to rebuild within such a time, and failed to do so, and then after the expiration of the time, assigned. Neither is he answerable for such breaches of covenant as are committed after he has assigned over the thing demisede, for if an action be brought against him charging him with such breaches, he may plead, that before the breach was incurred, he assigned all his estate and interest in the thing demised to J. S. (33), and this will be a good discharge; and it is observable that in such plea, it is not necessary to allege that the lessor had notice of such assignment But he may render himself liable to the lessee c Doe d. Calvert v. Reid, 10 B. & C. e Chancellor v. Poole, Doug. 764. 849. d Grescot v. Green, Salk. 199, Churchwardens of st. Saviour's v. Smith, 3 Burr. 1271. 1 Bl. R. 351. S. C. f Pitcher v. Tovey, Salk. 81. 4 Mod. 71. 2 Vent. 228. Carth. 177. S. C. by name of Tovey v. Pitcher, 3 Lev. 295. 1 Show. 340. S. C. (33) An assignment to a beggar or a person leaving the kingdom, provided the assignment be executed before his departure, is good. Nor will such assignment be considered as fraudulent, although the assignee never takes possession. Taylor v. Shum, 1 Bos. and Pul. 21. See also Lekeur v. Nash, Str. 1221, and Odell v. Wake, 3 Campb. 394. An assignment to a feme covert, where husband has not refused his assent, is sufficient; for a feme covert is of capacity to purchase of others without the consent of her husband; and though he may disagree and divest the estate, yet if he neither agree or disagree, the purchase is good. Barnfather v. Jordan, Doug. 451. for breaches incurred after the assignment, if he executes the indenture of assignment, "subject to the performance of the covenants in the lease." And an assignee cannoth, by assigning before action brought, defeat an action for breaches of covenant running with the land, and incurred in his time, the right of action being complete, and vested before the. assignment. From the form of the foregoing plea, it may be collected, that an assignee, in order to exonerate himself from his liability under the covenants in a lease, must convey all (34) his estate g See Steward v. Wolveridge, 9 Bingh. h Harley v. King, 2 Cr. M. & R. 18. 60. (34) In Eaton v. Jacques, Doug. 454, it was holden, that an assignment by way of mortgage, was not an assignment of all the estate and interest of the assignor, so as to make the mortgagee, who had never taken possession, chargeable in debt for rent arrear; although the mortgage had been forfeited before such rent became due; Buller, J. observing, that he had looked into the precedents, and they always alleged, by virtue whereof the assignee entered and was possessed.'" Having stated this decision, it will be proper to remark, that Kenyon, C. J. twice expressed his disapprobation of it; 1st, in Westerdell v. Dale, 7 T. R. 312. "As to the cases respecting the mortgagee, whether in or out of possession, he is the legal owner, and must be so considered in a court of law, notwithstanding he is subject to equitable interests. It is said in one of the cases*, that a mortgagee is only liable when in possession, and what proves this point is, that in charging the mortgagee, it is necessary to state in pleading, that he entered and was possessed; but, with great deference to the learned judge who gave that reason, I doubt it; I consider these as mere formal words." 2ndly, in Stone v. Evans, Middlesex Sittings, T. 39 G. 3, cited in 7 East, 341, and reported in Woodfall's Landlord and Tenant, 2nd edit. p. 113, and Abbott, p. 20. Gibbs having cited Eaton v. Jacques, Lord Kenyon said, he could not subscribe to the doctrine laid down in that case; that the defendant who was assignee of a term by way of mortgage, was liable to the covenants in the lease, not on the ground of possession, but as assignee; his liability was not limited by his possession; so long as he had the legal estate, so long he continued liable. If he had wished to avoid that liability, he should have taken an underlease. See also Williams v. Bosanquet, 1 Broderip and Bingham, 238, where Eaton v. Jacques was considered, by a great majority of judges, as not having been rightly decided; and it was holden, that where a party takes an assignment of a lease by way of mortgage as a security for money lent, the whole interest passes to him, and he * Eaton v. Jacques had been cited in argument. |