Husband and Wife. remedy, and the action on them is maintainable against the executor or administrator of the covenntor.49 If, however, there be a breach of these covenants, or other contracts of the decedent, after the settlement of the estate by an executor or administrator, and after the expiration of the time limited for the commencement of actions against him by the creditors of the deceased, the heirs, next of kin, widow, as next of kin, devisees and legatees, may be sued upon such covenants, or other contracts, in the mode pointed out by the statute.50 In this State, a person cannot be sued as executor de son tort.00 By the statute of frauds,51 the representatives of a deceased person are not personally liable without a written promise, and even such a promise is not available in this respect, unless there be an adequate consideration.52 If there be several executors, they should all be sued, in case they have all taken out letters, or the defendant may plead the nonjoinder in abatement; but those to whom the letters have not issued, may, perhaps, be omitted.53 If a married woman be appointed, by the will, executrix, the husband must be joined in the action.54 If a creditor appoint his debtor to be his executor, the executor will be liable for the amount of the debt, as for so much money in his hands at the time the debt or demand becomes due.55 When a debtor becomes administrator, the debt is suspended, and becomes assets in his hands.56 5. Husband and Wife. A feme covert cannot, in general, be sued at law; and when a feme sole, who has entered into a contract, marries, the husband and wife must, in general, be jointly sued, though the husband state an account, and expressly promise without any new consideration, to pay the debt, or perform the contract.57 Where the wife was a yearly tenant before marriage, at a rent payable quarterly, and she married before a quarter's rent became payable, it was held, that, in an action to recover such quarter's rent, the wife should be joined.58 But, if the husband, for some new consideration, as for forbearance, &c., expressly undertake, in writing, to pay the debt, or perform the contract of the feme, he may be sued alone on such undertaking. When rent becomes due after the marriage, upon a lease to the feme, whilst sole, or any other breach of the covenants contained in such lease is committed, during the coverture, the action may be against both, or against the husband alone.59 But the wife can, in no case, be sued upon a mere personal contract, made during coverture, although she live apart from her husband, and have a Parent and Child-Infants. separate maintenance secured to her by deed.60 Where the husband and wife execute a conveyance in which they both covenant to the grantee, the wife cannot be joined with the husband, in an action for the breach of the covenant.61 And an action on the promise or contract of the husband and wife, though not under seal, against both, is, of course, bad, as the promise of the wife is void. If the husband has been abroad seven years, and not heard of, the wife may sue alone, upon a contract made by her during that time.62 When the husband survives, he is not liable to be sued in that character, for any contract of the feme, made before the coverture, unless judgment had been obtained against him and his wife, before her death; and if she die before judg ment, the suit will abate ;70 but her administrator, and her estate, not reduced to possession by her husband in her life time, will be liable. For rent, accruing during the coverture, or for money due upon a judgment obtained against husband and wife, he may be proceded against as survivor.71 In case the wife survive, she may be sued upon her contracts made before coverture. If a married woman enter into a contract jointly with others, capable of contracting, her name should be omitted in a suit upon the contract.72 6. Parent and child-Infants. An infant is not, in general, liable to be sued upon his contracts, except for necessaries for himself, his wife, and children;73 and not even for necessaries, while he remains under the care of his father, and is supported by him.74 A parent is bound to provide his infant children with necessaries; and if he neglect to do so, a third person may supply them, and sue the father;75 but such third person must take notice of what is necessary for the infant, according to his situation in life;76 and if supplied by his friends, or others, the tradesman cannot recover.77 We have already seen, that where an infant enters into a contract with others capable of contracting, his name should be omitted in a suit upon the contract.78 An infant defendant must, in all cases, appear and defend by guardian, even (60) 8 T. R. 545; 16 Johns. 281; 17 Johns. 107; see 1 Eng. C. L. Rep. 10; 2 Esp. 554, 587; 26 Eng. C. L. Rep. 78 n. (a); 15 Mass. 31; 6 Pick. 89; 2 Kent's Com. 4th ed. 154 to 162. (61) 15 Johns. 483; 3 Blackf. 201; 17 Johns. 167; 8 Ohio Rep. 222. It seems, the covenant of the wife estops her from setting up an after acquired interest in the land. 8 Ohio Rep. 222; 4 Bibb, 436; 3 Call, 394; 7 Mass. 291. 21. Contra, 17 Johns. 167; 6 New Hamp. 17. As to suits against the wife, on covenants in a lease of land demised by her during the coverture; see 2 Saund. 180, n. 9. (62) 1 Chit. Pl. 8 Am. ed. 57.. (70) 7 T. R. 350; 15 Wend. 360. (71) Com. Dig. Bar. & Feme, 2, B. (73) 13 Mass. 204; 6 Mass. 78; 4 Wend. 405; 3 Caine's Rep. 323; 9 Cowen 626; 9 Wend. 233; Stra. 168. (74) 16 Mass. 28; 13 Johns. 480; 2 H. Bla. 1325; 9 Johns. 141. (75) 13 Johns. 480. As to what are necessaries, see 1 Esp. Rep. 211; 8 T. R. 578; 5 Esp. 28. 152; 1 Stra. 168. (76) 13 Johns. 480. (77) 14 Eng. C. L. Rep. 232; 1 Esp. 211; 25 Eng. C. L. Rep. 600. (78) See ante, p. 62. When an assignment of liability, or change of credit. when sued with others as coexecutor, or feme covert.79 The appointment is usually made, on motion, at the appearance term. The plaintiff may obtain a rule ordering the defendant's appearance, by guardian, within a certain day in term, and in default, the plaintiff may name a guardian to appear and defend.80 If the guardian be changed pending the action, the fact should be stated on the journals of the court. The infant defendant, and not the guardian, will be liable for the judgment and costs.80 7. When there has been an assignment of liability, or change of credit. In general, in the case of a mere personal contract, the action for a breach of it, cannot be brought against a person to whom the contracting party has assigned his interest. The original party can alone be sued. Thus: if one demise cattle or goods, and the lessee covenant for himself and his assigns, at the end of the term, to deliver such cattle or goods, and the lessee assign the cattle, &c., this covenant will not bind the assignee; for, it is merely a thing in action, in the personality, and wants such privity as exists between the lessor and lessee of real property, in respect of the reversion.82 83 There may, however, in some cases, be a change of credit, so as to transfer the liability, from the original contracting party, to another, or to one only of the original contracting parties. Thus, where the plaintiff's were creditors of A., and the defendants were debtors of A., and, by the express assent of all parties, it was agreed, that the defendants should pay the plaintiff the debt, due from them to A.: it was held, the plaintiffs were entitled to recover. But unless it was agreed that A. should be discharged from all liability, it seems that no such action could be supported.84 It must be borne in mind, that the general rule of law is, that a debt cannot be assigned;85 and the exception to that rule is, that when there is a defined and ascertained debt due from A. to B., and a debt to the same, or a larger amount due from C. to A., and the three agree that C. shall be B.'s debtor, instead of A., and C. promises to pay B., the latter may maintain an action against C. But in such action, it is incumbent on the plaintiff to show, that, at the time when C. promised to pay B., there was an ascertained debt due from A. to B.86 So, if one take the security of the agent of the principal, with whom he dealt, unknown to the principal, and give the agent a receipt, as for the money due from the principal, in consequence of which the principal deals differently with his agent on the faith of such receipt, the principal is discharged, although the security fail; but if the principal were not prejudiced, he would not be discharged.87 Where one of three joint covenantors gave a bill of exchange, as a collateral security, not expressly accepted in satisfaction of the debt, the judgment recover On Covenants running with land, ed on the bill was decided to be no bar to an action of covenant against the three.88 The creditor of a firm does not discharge a retiring partner, by agreeing to carry the debt to the account of the remaining partner, and by taking their bill, which is afterwards dishonored.89 But the bond or obligation, under seal, of one of the partners, will extinguish the firm debt,90 upon the principle that a security of a higher nature extinguishes inferior securities. If it clearly appear, that a creditor has accepted the substituted credit of a new partnership, instead of the liability of the old firm, and not merely as a continuing or additional security, the old firm will be discharged.92 And taking a new security from the continuing partner, may discharge the retiring partner, if so expressly agreed;92 but not otherwise,93 8. Covenants running with land. What are covenants running with land, has been briefly stated.94 1st. As to covenants in leases. The assignee of the lessee is liable to an action for a breach of covenant, after the assignment of the estate to him ;95 and, although he afterwards reassign, or assign to a third party, he continues liable for all breaches, accruing whilst the term was legally vested in him, though he have not taken possession.96 But the assignee is not chargeable for breaches committed after the assignment by him, though he assign purposely to a married woman, or an insolvent person, and although the lease contain a covenant not to assign; for, the assignment by the assignee, destroys the privity of estate. 97 Covenant, therefore, for rent, will not lie against the assignee, if he assigns his interest in the premises, before the rent becomes due.98 If the covenant be merely collateral and personal, an assignee is not, in any case, liable, and the lessee alone can be sued.99 And an under tenant of part of the term, is not an assignee, though for voluntary, and not mere permissive waste, he would be liable to the lessor in an action on the case. .2 It may be considered an open question in Ohio, whether an assignee of a lease, to whom an assignment has been made by way of mortgage security, is liable for the rent. In England he is liable, although he has never entered, or taken actual possession.3 The assignee of a term, by way of mortgage, is, by the English law, immediately vested with the whole interest; and, if that be the case in Ohio, he is liable for rent, as in England. Debt cannot (88) 3 East, 251; 8 T. R. 451. (96) 7 T. R. 312; 2 Saund. 182; 1 Salk. 198; 5 (89) 11 Eng. C. L. Rep. 201; 1 Hill, N. Y., Eng C. L. Rep, 72; 2 Ld. Raym. 367, 516; see 17 Johns. 340. 479. (90) 2 Johns. 213; 3 Johns. Cas. 180. (91) 9 Wend. 53. (92) 1 Chit. Pl. 8 Am. ed. 43; (cit. 2 Cr. & M. 617. 627; 4 Tyr. 491, S. C.); see 17 Johns. 340. 479. (93) 22 Wend. 183. (91) See ante, p. 50, and the cases there referred to. (95) 2 Saund. 301, n. 12; Bac Ab. Covenant, E. 31; 32 II. 8, C. 34; see ante p. 49, 50. (97) 15 Eng. C. L. Rep. 273; Platt on Cov. 503; 1 B. & P. 21; 9 Cowen 88. (98) 15 Eng. C. L. Rep. 273. (99) 2 Saund, 304, n. 12. As to what are collateral, see ante, p. 50, note. (1) Dougl. 183; 2 Ohio Rep. 221; 1 East, 502. (2) 2 Bl. Rep. 1111, (3) 5 Eng. C. L. Rep. 72; 15 Eng, C. L. Rep. 273; See 4 Leigh, 69; 2 Verm. 374; 2 Doug. 455; Ros. Actions, 450: 27 Law Lib. 71. (4) See 2 Ohio Rep. 223, 224; 3 Ohio Rep. 449, 465; 7 Eng. C. L. Rep. 83; Story on Bail. 238.239. On Covenants running with land, be supported against the assignee of part of the land demised by a lease, but only against the assignee of the whole; nor, it seems, is covenant sustainable.5 Where there is an express covenant in a lease to pay rent, or to perform any other act, the original lessee, and his executors or administrators, are liable to an action of covenant, during the lease, for the nonperformance of covenants, notwithstanding, before the breach complained of, the interest in the lease has been assigned, and rent accepted from the assignee. But an action cannot, it seems, be supported against the lessee, or his personal representatives, for the breach of a covenant merely implied by law, committed after acceptance of rent from the assignee;7 nor can the lessor, after such acceptance of the assignee, maintain an action of debt against the lessee or his representatives, even upon an express covenant.8 2ndly. As to defendants in actions upon the common covenants, in deeds of conveyance. We have already seen in what cases these covenants run with the land,9 and the following remarks are only applicable where the covenants pass to the assignee of the land. Where there have been successive conveyances from A. to B., and from B. to C., and so through the alphabet, the holder of the land at the time of the breach of these covenants, (Z.) may, at the same time, sue each, or all separately of the previous covenantors, the same as though they had each covenanted with him personally; but they will be liable to make one satisfaction only, together with the costs of the several suits. If, in the above mentioned chain of alphabetical conveyances, the holder of the land, (Z.) obtains satisfaction from C., by actual payment, then the intermediate covenantors, from C. down to the holder of the land, will be discharged. In such case, A. and B. only, will be liable to the action of C.; for, the party who satisfies the covenant, may resort to his action against those covenantors only through whom he derived his title, and not against those who entered into the covenants after him.10 (5) 2 Ohio Rep. 221. But see Cro. Car. 221; 11 Eng. C. L. Rep. 279; 22 Pick. 565. Where, in covenant against an assignee of a lease, the plaintiff declared that all the right, &c., of the lessee vested in the defendant by assignment, and that afterwards the premises were out of repair; and the defendant pleaded in bar, that one period he was possessed of one sixth of the premises, as tenant in common with A. B. and C., and for another period, of one third, as tenant in common with B. and C., and that no more or greater interest in the premises ever came to him by assignment; it was held, that as the plea did not set up a bar to the action in respect to that part transferred to the defendant, it was bad in substance, not being a bar to the whole action; that it was bad in form also, as it merely confessed that defendant had possession of part of the premises, and not that he was assignee; that if the defendant meant to discharge himself of all liability beyond (7) 19 Eng. C. L. R. 194; 4 T. R. 98; 1 Saund. 211, b. As to what are covenants implied by law, see ante, p. 48, 49. (8) 1 T. R. 92; 1 Saund. 241, n. 5. (10) 5 Ohio Rep, 157; 1 Conn. 244; 1 Dev. & Bat. 94; 5 Cowen 137; 1 M. & S. 353; 4 M. & S. 53; 2 Met. 615, per DEWEY, J.; 2 Penn. 514; 3 Ohio 211; 1 Aik. 233; 1 Dev. & Bat. 94. But see 14 Johns. 89, reviewed in 5 Cowen, 137. |