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on a bond, wherein the ancestor has bound himself and his heirs b. It is not necessary to allege in the declaration, that the heir has lands by descent. It seems, however, that in this case, as well as in debt on bond against the heir, if the heir has not any lands by descent, he may insist on it by way of defence to the action. See the form of plea of riens per descent to an action of covenant against heir. Lutw. 290.
In an action on a breach of covenant in a lease for quiet enjoyment, the declaration, after stating that defendant's ancestors granted the lease in question, alleged, that the reversion vested in the defendant by assignment; defendant, by guardian, pleaded that the reversion did not vest in him modo et forma ; it appeared in evidence, that the estate descended to the defendant, an infant, as heir at law to the lessors C; whereupon it was objected, that the reversion vested in the defendant by descent, and not by assignment; and that if the declaration had charged the defendant as heir, he might have prayed the parol to demur, in order that he might have an opportunity of electing whether he would take the estate subject to the incumbrance or not. But the court was of opinion, that if the defendant had intended to avail himself of his infancy, he ought to have pleaded it; that it was sufficient to prove the substance of the issue, which was, that defendant was clothed with such a character as would make him liable to the covenant; and that was sufficiently proved by shewing that the estate was vested in him ; for whether he was in possession as assignee or heir at law, he was equally liable to this covenant.
2. Against Executor.-Executors and administrators are bound by the covenants of their testator or intestate, although they be not named; unless the covenants are such as in their nature determine by the death of the covenantor. It was said by the court in Hyde v. Dean of Windsor, Cro. Eliz. 553. that covenant lies against an executor in every case, although he be not named, unless it be such a covenant, as is to be performed by the person of the testator, which the executor cannot perform. Executors and administrators may be sued as assignees d; for they are assignees in law of the interest of the term. Where covenant is brought against an executorf; although the breach assigned be for default of reparation committed in the time of the executor, yet the judgment must be de bonis testatoris ; for it is the covenant of the testator which binds the executor as representing him, and therefore he must be sued by that name. Covenant by testator to teach an apprentice his trade is binding on the executors, and they ought to see that the apprentice is taught his trade; and if they are not of the same trade, they ought to assign him to another who is of the trade, so that he may be taught according to the covenant. Where an administrator had occupied premises demised by indenture to the intestate, it was holdenh, that a plea to covenant for nonpayment of rent, taxes, and non repair, stating that the premises yielded no profit, could not be supported.
e Per Fleming, C. J. 1 Bulstr. 23.
b Dyke v. Sweeting, Willes, 585.
Carth. 519. I Ld. Raym. 453. Salk.
3. Against Assignee.-1. If the covenant extends to a thing in esse, parcel of the demise, as a covenant to repairi; to reside constantly on the demised premisesk, to leave part of the land demised every year for pasture', to insure against fire premises situated within the limits mentioned in the party-wall act, 14 Geo. 3. c. 78.m or the like, the thing to be done by force of the covenant, is in a manner annexed and appurtenant to the thing demised: it is a parcel of the contract, and tends to the support of the thing demised; hence, it shall bind the assignee, although he be not named; and the assignee by act in law, as tenant by elegit of a term, or he to whom a lease for years is sold by force of any execution, is equally bound with the assignee by act of the party”. Where it is proved o that A. is tenant, and that upon his quitting the premises B. takes possession, B. may be presumed to have come in as assignee of A.
A covenant by a lessor to supply the premises demised, (two houses) with a sufficient quantity of good water at a certain rate for each house is a covenant that runs P with the land.
2. If the covenant relates to a thing not in esse at the time of the demise, but to be done upon the thing demised, as a covenant to build a new wall upon the thing demised; it shall bind the assignee, if named.
3. If the covenant relates to a thing merely collateral to and not in any respect concerning the thing demised 9, as a 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 land , 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.
g Walker v. Hull, 1 Lev. 177. Sed quæ. h Tremeere v. Morison, 1 Bingh. N.C.
89. i Dean and Chapter of Windsor's case,
5 Rep. 24. a. k Tatem v. Chaplin, 2 H. Bl. 133. 1 Cockson v. Cock, Cro. Jac. 125, m Vernon v. Smith, 5 B. & A. 1.
n 6th Resolution. Spencer's case, 5
Rep. 17 b. o Doe v. Murless, 6 M. & S. 110, re
cognized by Bayley, J. in Doe d.
Morris v. Williams, 6 B. & C. 42. p Jourdain v. Wilson, 4 B. & A. 266. 9 Spencer's case, 2nd Resolution.
4. If a covenant relates to personal goodst, 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. 8 Mayor of Congleton v. Pattison, 10
East, 130. recognized in Easterby v.
Sampson, 1 Cro. & J. 118. See 6
(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 sessee 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
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 2. 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 d 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 b Congham v. King, I Rol. Abr. 522.
B. and C. 505. Judgment atfirmed Sir William Jones, 245. S. C. Cro. on error, 6 Bingh. 044. See also Car. 221. S. C. recognized by the Carr v. Roberts, 5 B. & Ad. 78.
court in Stevenson v. Lambard, y Grey v. Cuthbertson and another, 2 East's R. 580.
assignees of Mills, T. 25 G. 3. B. R. c Stevenson v. Lambard, B. R. T. MSS., and 4 Doug. 351.
42 Geo. 3. 2 East's R. 575. 2 Canham v. Rust, 2 Moore, 164. d This ought to have been pleaded to a Roach v. Wadham, 6 East, 289. a moiety of the rent for half a year.
cited in Doe d. Wigan v. Jones, 10 B. & C. 459.