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fire; on their being burnt down, the tenant's liability on the former covenant is not limited to the amount of the sum to be insured under the latter (c).

A court of equity will not afford any relief by injunction against a forfeiture for breach of a covenant to insure (d).

V. By whom the Action of Covenant may be maintained.

1. By Heir.-Covenants which run with the land will descend to the heir of the covenantee; and he may sue for a breach thereof: -where, therefore, the lessee covenanted with the lessor, his executors and administrators, to repair, it was held, that the heir of the lessor, though not named, might have covenant against lessee for not repairing (e). Plaintiff declared as heir on a covenant by lessee for years to repair, and assigned for breach, that the premises were out of repair for a period of time which included a portion of his ancestor's life; and on this ground an exception was taken in arrest of judgment, after verdict for the plaintiff; but it was overruled; Holt, C. J., observing, that "if the premises were out of repair in the time of the ancestor, and continued so in the time of the heir, it was a damage to the heir; and the jury may give as much in damages as would put the premises in repair; but hereby no damages are given in respect of the length of time they continued in decay, but in respect to what it will cost at the time of action brought, to put the premises in repair" (f). Upon a covenant with A. and his heirs for further assurance upon request, and a request made by the ancestor in his lifetime to levy a fine, and a neglect so to do, the ancestor not being evicted in his life, but the heir being evicted afterwards, the heir may maintain an action upon the request of the ancestor; because the ultimate damage had not accrued in the life of the ancestor (g).

2. By Executor.-A. and B. his wife demised lands to C. for twenty-one years, and covenanted, that they would, at the end of twenty-one years, make a good lease to C. and his assigns for twenty-one years, commencing at the expiration of the first term. During the first term, the lessee died, having appointed D. his executrix, who entered, and died, having appointed the plaintiff her executor, who entered. At the expiration of the first term, A. and B. having refused to grant the further lease, an action was brought by the plaintiff (as executor of D., executrix of C. the lessee), on this covenant, against A. the husband; and it was adjudged that the action would well lie. The reasons of the judg

(c) Digby v. Atkinson, 4 Campb. 275.
(d) White v. Warner, 2 Mer. 459.
(e) Lougher v. Williams, 2 Lev. 92.
(f) Vivian v. Campion, Salk. 141. This

is not, however, the true criterion of damage in such a case as this, ante, p. 522. (g) King v. Jones, 5 Taunt. 418; (in error), 4 M. & S. 188.

ment are not mentioned in the report; but it appears to have been decided on the ground that the plaintiff, being executor of D., who was executrix of C. the lessee, was, as such, entitled to the benefit of his covenant (h).

Covenant by the plaintiff as executor of J. S. The defendant sold lands to J. S., and covenanted with him, his heirs, and assigns, that he should enjoy the lands against all persons claiming under one A.; and the breach assigned was, that B. and C. in the lifetime of the testator, entered claiming under A. It was contended that the covenant was with J. S., his heirs, and assigns, touching an estate of inheritance; and, therefore, that the action ought to have been brought by the heir or assignee, and not by the executor; but it was resolved by the court, that the eviction being of the testator in his lifetime, he could not then have an heir or assignee of the land, and therefore that the damages belonged to the executor, though not named in the covenant; for he represented the person of the testator (i). But where the plaintiff as executrix declared that the defendant conveyed to her testator certain land in fee (subject to redemption), and covenanted with the testator, his heirs, and assigns, that he was seised in fee, and had good right to convey, assigning for breach that the defendant was not seised, &c.; it was held, that the executrix could not maintain this action without showing some special damage to the testator in his lifetime, or that the plaintiff claimed some interest in the premises (k). The plaintiff, being devisee in fee, sued afterwards in that character, stating as damage, that the premises were thereby of much less value than they would have been, and that she had been prevented from selling them at so large a price as she otherwise would; and it was held, that the action was maintainable (7). The cases of Kingdon v. Nottle, and King v. Jones, have decided, that where there are covenants real, that is, which run with the land and descend to the heir, though there may have been a formal breach in the ancestor's lifetime, yet if the substantial damage has taken place since his death, the real representative and not the personal is the proper plaintiff. But where the covenant is merely collateral, as where the lessee covenanted not to fell timber trees, excepted out of the demise, the executor of the lessor may maintain an action for a breach in the lifetime of the testator (m). And where the covenant is a continuing one, as, for instance, to repair (the breach of which of itself imports damage), the executor may, it seems, sue for the damage accruing in his testator's lifetime; Ricketts v. Weaver, 12 M. & W. 718; and the heir for the subsequent damage. Vivian v. Campion, supra.

Lessee for years demised for a term longer than his own, the

(h) Chapman v. Dalton, Plowd. 284.
(i) Lucy v. Levington, 2 Lev. 26.
(k) Kingdon v. Nottle, 1 M. & S. 355.

(1) Kingdon v. Nottle, 4 M. & S. 53.
(m) Raymond v. Fitch, 2 C. M. & R.

588.

under-lessee covenanting to pay rent to the lessee; it was held, that the executor of the lessee might sue the under-lessee for rent accruing during the continuance of the term, not as assignee of the reversion, but on the privity of contract; for the deed operated as a demise, and the covenant was for a payment in the nature of rent (n). Executors, though not named, may sue on a covenant made with testator, in reference to a chattel (o).

3. By Assignee.-Assignee of part of the reversion of the land demised, e. g. for life or years, may take advantage of the covenants contained in an indenture of demise; for he is an assignee within the 32 Hen. VIII. c. 34 (p). 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. Lee v. Arnold, 4 Leon. 27. But covenants may. Twynam v. Pickard, 2 B. & Ald. 105; where it was held, that covenant will lie by the assignee of the reversion of part of the demised premises against the lessee for not repairing such part. Acc. Badeley v. Vigurs, 4 E. & B. 71.

As the assignee of a term is bound by covenants which run with the land, so he may take advantage of them (q). If a man demise or grant land to a woman for years, and covenant with her to repair the houses during the term, and the woman marries 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 (r). The law is the same with respect to tenants by statute merchant, or statute staple or elegit, of a term, and he to whom a lease for years is sold by force of any execution shall have an action of covenant in such case as a thing annexed to the land, although they come to the term by act of law (s). So the executor of B., 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. (t). The word assignee comprehends the assignee of the assignee, the executors of the assignee of the assignee, and the assignee of the executor or administrator of the assignee (u). But covenant does not lie by an assignee for a breach done before his time (x). 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

(n) Baker v. Gostling, 1 B. N. C. 19. (0) Doe v. Rogers, 2 N. & M. 550. (p) 1 Inst. 215 a.; Matures v. Westwood, Cro. Eliz. 599.

(q) Hyde v. Dean of Windsor, Cro. Eliz. 553.

(r) The word grant does not now imply a covenant in law, ante, p. 498. (s) Spencer's case, 5 Rep. 17, 5th Res. (t) Chapman v. Dalton, ante, p. 524. (u) Spencer's case, 7th Res. (x) Lewes v. Ridge, Cro. Eliz. 863.

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 (y).

32 Hen. VIII. c. 34.-By the common law no grantee or assignee of the reversion could take advantage of a re-entry by force of any condition (≈). And "no stranger to any covenant could take advantage thereof, but only such persons as were parties or privies thereunto" (a); but the 32 Hen. VIII. c. 34 (b), 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., and all other persons being grantees or assignees to or by the king, or to or by any other person than the king, their heirs, executors, successors, and assigns, shall have like advantages against the lessees, their executors, administrators, and assigns, by entry for non-payment of the rent, or for doing waste or other forfeiture, and, by action only, for not performing other conditions, covenants, or agreements contained in the leases or grants, against the said lessees and grantees, their executors, administrators, and assigns, as the said lessors and grantors themselves, their heirs or successors, might have had. By sect. 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 person, of the reversion of the same lands and hereditaments so letten, or any parcel thereof, for any condition or covenant contained in their leases, as the same lessees might have had against the said lessors and grantors, their heirs and

successors.

The first section of the above statute gives to the assignee of the reversion two remedies: one, by entry for non-payment 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 only, as are either incident to the reversion (e. g. the payment of rent), or for the benefit of the estate (e. g. to repair); so it hath been resolved, that the remedy by action is confined to the breaches of such covenants as relate to the thing demised, and not to collateral covenants (c). 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 mort

(y) Canham v. Rust, 2 Moore, 164.

(z) 1 Inst. 215, a.

(a) See the preamble, and 1 Wms. Saund. 240, n. 3.

(b) The statute does not extend to covenants upon estates tail. 1 Inst, 215, a. (c) Spencer's case, 5 Rep. 18, a.

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gagor and his assigns only; it was held, 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 the mortgagor, who has only an equity of redemption, and is (in law) a stranger to the land (d).

If the estate in reversion, 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 twenty 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 held, 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 (e). But now by 8 & 9 Vict. c. 106, where the reversion of any land expectant on a lease shall be surrendered or merge, the estate, which shall confer as against the tenant under the lease the next vested right to the land, "shall, to the extent and for the purpose of preserving such incidents to, and obligations on, the same reversion, as but for the surrender or merger thereof would have subsisted, be deemed the reversion expectant on the same lease" (f).

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 due (g). A grantee of the reversion of copyhold lands is within the equity of the statute, 32 Hen. VIII. c. 34, which is a remedial law. Glover v Cope (h). And the grantee of land, subject to a term in an incorporeal hereditament therein, e. g. the right to dig for and take minerals, &c., is also within the statute, for in reality the relationship of reversioner and owner of a particular estate exists between them (i). A remainder-man is an assignee of the reversion within the statute. Devise to A. for life, remainder to B. for life, &c., with power to lease. A. leases for a term under the power, and the lessee covenants with the lessor, his heirs and assigns, for payment of the rent to the lessor, and to 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

(d) Webb v. Russell, 3 T. R. 393; and see Wootton v. Steffenoni, 12 M. & W. 129; Doe v. Ongley, 10 C. B. 25.

(e) Moore, 94, pl. 232, cited 3 T. R. 402, 403; see Thorn v. Woollcombe, 3 B. & Ad. 586.

(f) The 7 & 8 Vict. c. 76, which was in force from 31st December, 1844, to 1st

October, 1845, contained a similar provision.

Sect. 12.

(g) Midgley v. Lovelace, Carth. 289. See Womersley v. Dally, 26 L. J., Exch. 219. (h) 3 Lev. 326; Carth. 205, S. C. See Whitton v. Peacock, 3 Myl. & K. 325. (i) Martyn v. Williams, 1 H. & N. 817.

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