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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 demised, 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.
f Pitcher v. Tovey, Salk. ol. 4 Mod. d Grescot v. Green, Salk. 199, Church- 71.2 Vent. ?28. Carth. 177. S.C. by
wardens of St. Saviour's v. Smith, name of Tovey v. Pitcher, 3 Lev. 295. 3 Burr. 1271, 1 Bl. R. 351. S. C. 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 Lekeux 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 y. 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.
(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 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.
and interest in the thing demised. If the conveyance falls short of this, it will not amount to an assignment, so as to discharge the assignee from his liability. In a plea of this kind, it is usual to aver the entry and possession of the person to whom the defendant assigned the premises; but such averment is not traversablei (35).
i Walker v. Reeves, Doug. 461. n.
becomes liable on the covenant for payment of rent, although he has never occupied or become possessed in fact: and see Burton v. Barclay, 7 Bingh. 745.
(35) See Lord Kenyon's opinion as to this averment in the preceding note. It is to be observed, that assignees of a bankrupt lessee are not liable for rent arrear, where they have not taken possession of thing demised. Per Kenyon, C. J. in Bourdillon v. Dalton, and others, assignees of Bell, a bankrupt, Peake's N. P. C. 238; 1 Esp. N. P. C. 233. Neither are they bound to take possession of a damnosa hæreditas, that is, property of the bankrupt, which, so far from being valuable, would be a charge to the creditors. The assignees may take to the bankrupt's property or not, according as it is or is not beneficial to the creditors; and consequently they may do such previous acts as are necessary to ascertain whether the property be beneficial or not, before they take to it. Hence, where defendants, assignees of a bankrupt lessee, advertised the lease for sale by auction, in which advertisement they did not state that the premises belonged to them, nor for or by whom they were to be sold, but only generally that there was a saleable term, and no bidder offering, they declined interfering any further with the property; and it did not appear that they had ever taken possession, either actually or by receiving or paying any rent; it was holden, that there was not sufficient evidence to fix upon the defendants the characters of assignees of the bankrupt's term, so as to render them responsible for the performance of the covenants in his lease. Turner v. Richardson, 7 East, 335. Some assent of the assignees of a bankrupt to the assignment to them, of the premises, is necessary, in order to charge them with the bankrupt's covenants. Adm. S. C. Until some act is done to manifest the assent of the assignees, the term remains in the bankrupt and he is liable to the payment of the rent accruing due subsequent to the bankruptcy. Copeland v. Stevens, 1 B. and A. 593. But see 6 G. 4, c. 16, s. 75. ante, 480.
The assignees of a bankrupt having allowed his effects to remain upon the premises nearly a year after the bankruptcy, in order to prevent a distress, paid the arrears of rent then due, at the same time intimating to the landlord that they did not mean to take to the lease unless it could be advantageously disposed of; the effects were soon after sold, and removed from the premises; the lease was at the same time put up to sale by order of the assignees, but there
That the whole interest in the original lease must be conveyed, in order to make a person chargeable as assignee, will appear from the following cases :
Lessee for lives, of a messuagek, under a covenant to keep the same in repair during the term, and at the end of the term to deliver it up so repaired, by indenture“ granted and assigned all his estate and interest therein to A. and his executors, habendum, to A. and his executors, for ninety-nine years, if cestui que vie should so long live, in as large, ample, and beneficial way as the grantor, his heirs, &c., held the same, paying a certain rent to the reversioner.” On the expiration of the lives, the reversioner brought covenant against the executors of A., for not yielding up the messuage in repair. It was alleged in the declaration, that all the estate and interest of the lessee for life vested in A. by assignment. This was denied by defendant's plea. A case having been reserved and argued, the court directed the postea to be delivered to the defendants; Lord Kenyon, C. J. observing, that there were not any words in the indenture, by which the freehold, of which the original lessee was seised, was conveyed to the testator of the defendants : that the conveyance of all the grantor's estate and interest to a man and his executors, for years, could not convey a freehold ; that such words meant only their interest, &c., in the legal estate thereby granted; and that the court could not give those words a larger operation than the parties themselves had declared they should have. So the devisee of an equitable
k E, of Derby v. Taylor, 1 East's R. 502.
were not any bidders for it; they omitted to return the key to the landlord for nearly four months after ; however, they were not asked for it, and they did not otherwise make use of the premises. Lord Ellenborough held that they were not liable to the landlord as assignees of the lease; for the mere omission to send the key was not tantamount to entering and taking possession. Wheeler v. Bramah, 3 Campb. 340. But where the assignees of a bankrupt entered and kept possession of his leasehold property for three months, it was holden, that they were chargeable with the covenants in the lease, although the bankrupt's effects were upon the premises during that period, and the assignees immediately after the sale delivered up the key. Hanson v. Stevenson, 1 B. and A. 303. [If assignees take possession with a view to a beneficial occupation, they are liable upon a tenancy from year to year, until it is terminated, the same as upon a lease. Ansell v. Robson, 2 Cr, and J. 610.] But see stat.
estate is not liable as assigneel. So where in covenant for rent arrearm, brought against the defendant as assignee of J. S., it appeared in evidence, that by the deed, under which the defendant held, the premises were conveyed to him by J. S. for a day or some days less than the original term; the court were of opinion, that the action could not be maintained, the defendant being an under-lessee, and not an assignee of the whole term.
But where a lessee for years granted the whole of the term to J. S.", it was holden, that J. S. might maintain an action as assignee of the term against the lessor for a breach of covenant; although in the deed of assignment, the rent was reserved to the lessee, with a power of re-entry in case of non-payment, and although new covenants were introduced into that deed. With respect to declaring against an assignee, it is to be observed, that it is not incumbent on the lessor to set forth mesne assignments. It is sufficient to state, generally, that all the estate, &c.° of the lessee vested in the defendant by assignment; for it cannot be presumed that the lessor is acquainted with the particulars of the assignee's title. A. demised to B. for a term of years, and B. after covenanting for payment of rent, covenanted for himself, his executors, and assigns, that neither he, or his executors, or administrators, would assign without the consent of A. The term vested by assignment in C., who upon being sued for non-payment of rent, pleaded that before the rent became due, he had assigned to D. A. replied the covenant not to assign; but the replication was holden P bad on demurrer, on the ground that the assignment itself was not void (although a breach of covenant,) and as soon as C. ceased to be assignee, his obligation to perform the covenant was at an end.
VI. Of the Declaration, and herein of dependent Covenants,
Conditions precedent, and independent Covenants.
Venue.-As this action is more frequently brought for breaches of covenants contained in leases, than on any other kind of covenants, the following table may be useful, in
1 The Mayor, &c. of Carlisle v. Bla
mire and Tyson, 8 East, 487.
n Palmer v. Edwards, Doug. 186. n.