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, or their respective executors. The term expired. The defendants, assignees of lessor, refused to name an arbitrator, which was the breach assigned. On demurrer, it was held, 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 (t). So where a term is granted as a security for money lent on mortgage, the covenant in the mortgage deed to pay the money on a given day is a personal and collateral covenant not running with the land (u). Where lands are conveyed by A. to B. 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 from A. (x). A covenant which runs with the land, 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 (y). So where covenant was brought by the lessor against the assignee of the lessee for the non-payment of a year's rent; for the condition of the assignee is different from that of the lessee, who is chargeable on the privity of contract, whereas the assignee is chargeable on the privity of the estate, and in respect of the land; hence the rent is apportionable; on the same principle as the rent of the lessee or assignee would be in an action of debt or replevin (z). Mayor of Swania v Thomas. 102BD40. 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 held 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 (a). An assignee of a term is not answerable for the breach of such covenants as were broken by the lessee before he became assignee, as where lessee covenanted to rebuild within such a time, and failed to do so, and then, after the expiration of the time, assigned (b). (1) Grey v. Cuthbertson, 4 Doug. 351. (a) Doe v. Reid, 10 B. & C. 849. (b) Grescot v. Green, Salk. 199; Churchwardens of St. Saviour's v. Smith, 3 Burr. 1271; 1 BI. R. 351, S. C. Neither is he answerable for such breaches of covenant as are committed after he has assigned over the thing demised (c); 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. (d), and this will be a good discharge; and it is not necessary to show that the lessor had notice of such assignment (e). An assignee cannot, 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 (f). So an action lies against an assignee for breaches committed in his time, although the lease has been determined by the re-entry of the lessor under a condition to that effect, and that thereupon the lessor should have the premises again "as if the indenture had never been made" (g). And if the lessor sue the original lessee on the privity of contract for breaches committed in the time of the assignee, the lessee may maintain an action founded in tort against the assignee, for having neglected to perform the covenants during the time he continued assignee, whereby the lessee sustained damage (h), upon the ground that, during the continuance of the interest of the assignee, there is a duty on his part to pay the rent and perform the covenants (i). Where an assignee takes an assignment of leasehold premises, subject to the payment of the rent and the performance of the covenants contained in the lease, he is not liable in covenant for the rent which the lessee has been compelled to pay after he (the assignee) has assigned over (k). From the above cases it may be collected, that an assignee, in (c) Chancellor v. Poole, Doug. 764. (d) 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 B. & P. 21. See also Lekeux v. Nash, Str. 1221, and Odell v. Wake, 3 Campb. 394. A fraudulent assignment is as no assignment at all; in that case, both at law and in equity, the act is altogether void; but it is a mistake to call an assignment to a beggar a fraudulent assignment. If a party assign nominally only, retaining the beneficial possession all the time, it is fraudulent, because, whilst he assumes to do one thing, he really does another; he retains the benefit, and by a false act endeavours to get rid of the burthen. But if he assigns really, getting rid of the burthen, and giving up really the benefit also (if any) to his assignee, it is not a fraudulent act. His motive for parting with it, or the other's motive for receiving it, are not enough to make it fraudulent, if the act done be a real act, intended really to operate as it appears to do. Per Alderson, B., in Fagg v. Dobie, 3 Y. & C. 103. See also the remarks of Lord Cottenham, C., on the right of an assignee to relieve himself from the obligations of a lease, in Rowley v. Adams, 4 M. & Cr. 534. An assignment to a feme covert, where husband has not refused his consent, 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 nor disagree, the purchase is good. Barnfather v. Jordan, Doug. 451. (e) Pitcher v. Tovey, Salk. 81. (f) Harley v. King, 2 C. M. & R. 18. 178. order to exonerate himself from his liability under the covenants in a lease, must convey all his estate 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 (1). It is not necessary that the assignee should have entered. Hence a mortgagee of a lease by assignment is liable on the covenant for rent, though he has never in fact occupied m). The assignees of a bankrupt lessee, however, are not liable for rent arrear, where they have not taken possession of the thing demised (n), nor done some act to manifest their assent to the assignment as it regards the term, and their acceptance of the estate, rents, &c. (0); for they are not 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 (p). 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 held, that there was not sufficient evidence of any assent by them to accept 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. "The result of the various cases upon this subject is, that the assignees of the bankrupt are not liable as assignees of the term, unless they have done some act which unequivocally indicates to the lessor that they have elected to take the benefit of the lease. No general rule can be laid down as to the effect of remaining in possession of the demised premises, or paying rent for them, or doing any other act consistent with the supposition that the assignees have not elected to take the lease as part of the property of the bankrupt, for the benefit of the creditors. Each case must be determined by the peculiar circumstances belonging to it." Per Lord Campbell, C. J., in Goodwin v. Noble, 27 L. J., Q. B. 204. Where, therefore, the assignees took possession of an hotel, but only for the purpose of keeping the bankrupt's furniture and (1) Walker v. Reeves, Doug. 461, n. (m) Williams v. Bosanquet, 1 B. & B. 238; Burton v. Barclay, 7 Bingh. 745. (n) Bourdillon v. Dalton, Peake's N. P. C. 238. (0) Copeland v. Stevens, 1 B. & Ald. (p) That the same rule applies to assignees in trust for the benefit of creditors, see Carter v. Warne, 4 C. & P. 191; contra, How v. Gough, 3 A. & E. 659. That it applies to the assignees of insolvents, Lindsay v. Limbert, 2 C. & P. 526. goods which were upon the premises, and closed the house; paid, and submitted to a distress for, rent, but protested that it was done to save the furniture and effects from being sold; kept the tap of the hotel open by a third party, but for the purpose of preserving the licence; and an action of ejectment having been brought against them, said they would resist it, but the action had been commenced before the goods were removed, so that all they might have meant was, perhaps, that the ejectment would not succeed; it was held, that they were not liable on the covenant in the lease. S. C. But see Hanson v. Stephenson, 1 B. & Ald. 303, where semble however that the assignees carried on the bankrupt's trade. So where the assignees, on an application to them by the plaintiff, positively refused to accept the lease, although they had previously so far dealt with it, as to release an under-tenant. Hills v. Dobie, 8 Taunt. 325. But if they put up a lease to sale, and accept a deposit from the purchaser, they are liable, unless they show the contract rescinded. Hastings v. Wilson, Holt, 290. So where they interfere in the management of a farm. Thomas v. Pemberton, 7 Taunt. 206; Welch v. Myer, 4 Campb. 368 (q). See ante, p. 520. As the assignee, to exonerate himself from liability, must convey all his estate in the demised premises, so the whole interest in the original lease must be conveyed, in order to make a person chargeable as assignee, as will appear from the following cases : Lessee for lives of a messuage, under a covenant to keep and deliver up in repair, conveyed all his estate and interest therein to A. and his executors, to hold the same for ninety-nine years if the 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 held that the action would not lie; 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 (r). So where in covenant for rent arrear, 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, (q) 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 C. & J. 610. 502. the defendant being an under-lessee, and not an assignee of the whole term (s). The devisee of an equitable estate is not liable as assignee (t). But where a lessee for years granted the whole of the term to J. S.; it was held, 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 nonpayment, and although new covenants were introduced into that deed (u). A. demised to B. for a term, B. covenanting for payment of rent, and not to 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 held bad, 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 (x). In declaring against an assignee, 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 (y). 4. Against Devisee.-By 11 Geo. IV. & 1 Will. IV. c. 47, s. 3, in the cases mentioned in that act (see post, tit. " Debt") creditors may maintain debt or covenant (z), against the heirs and devisees, or devisees of such devisees, jointly. And by the 4th section, if there is not any heir-at-law, the creditor may bring debt or covenant against the devisee solely (a). VII. Of the Declaration. Breach, p. 541. Dependent Covenants and Conditions precedent, p. 542. Mutual and Independent Covenants, p. 548. Venue.--The principle upon this subject is as follows. Where the action is founded on privity of contract, it is transitory, and the venue may be laid in any county; but where the action is founded upon privity of estate only, it is local, and the venue must be laid (s) Holford v. Hatch, Doug. 183. (u) Palmer v. Edwards, Doug. 186, n. (z) Under the 3 & 4 Will. & Mary, c. 14, an action of debt only lay. Wilson v. Knubley, 7 East, 128. (a) Under the 3 & 4 Will. & Mary, c. 14, a specialty creditor could not recover against a devisee if there was no heir. Hunting v. Sheldrake, 9 M. & W. 256. |