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ued; or he might have brought an action of debt for it. But the question is, whether an action of assumpsit will lie, in which he states that the defendants occupied by his sufferance and permission. It was said that a new tenancy might be inferred when the defendants had notice of the surrender to the plaintiff'; but there is no ground whatever for any such inference. It is quite plain that the defendants held under the lease made by Richardson, and under that alone, and the plaintiff could not have prevented them from so holding. The permission to occupy emanated from Richardson, the grantor of the lease, and was complete when the lease was executed, and never could emanate from the person who subsequently became assignee of the reversion; unless, indeed, Richardson having granted for himself and his assigns, the permission of any person who might becoine assignee of the reversion during the lease can be said to be virtually included, so that the occupation became in point of law permissive on the part of the assignee as soon as his interest took place. We think that this is the right view of the case, and that, the occupation being in point of law by the permission of the plaintiff, the action is maintainable in its present form by virtue of the Statute 11 G. 2, c. 19, § 14. In most of the cases referred to on the argument the tenancy was from year to year. It is obvious that the assignee of the reversion has then the power of determining the tenancy by notice; and, if he refrains from so doing, the occupation may well be said to be by his permission. In Lumley y. Hodgson, 16 East, 99, the tenancy was from year to year, and a notice to quit had actually been given, but not persevered in. The action was for a year and a half's rent: the last year's rent all accrued after the expiration of the notice to quit; and the occupation during that time was clearly by the permission of the plaintiff'; the first half year not so; and the same question might have arisen as in the present case : but it was not made. In Mortimer v. Preedy, 3 M. & W. 602, the court felt the same difficulty as arises here; but the point was not expressly determined. The case of Buckworth v. Simpson, 1 C. M. & R. 834 ; s. c. 5 Tyr. 344, was also upon a tenancy from year to year: so was the case of Dolby v. Iles, 11 A. & E. 335, which, however, turned upon the defendant being estopped by his own acts of recognition. No case appears yet to have been determined where an absolute lease in writing, not under seal, for a fixed term of years, having been granted, and the landlord having assigned his reversion, it has been held that the assignee can maintain an action of assumpsit for use and occupation. We are, howover, of opinion, for the reasons already given, that he can; and we think that the direction of the learned judge on this part of the case was wrong, though right as to the question of repair. The rule must be absolute for a new trial.
i See Kennedy v. Owen, 136 Mass. 199.
UNDER THE STATUTE OF 32 HEN. VIII. C. 34.
St. 32 HEN. VIII. C. 34. — Where before this time divers, as well temporal as ecclesiastical and religious persons, have made sundry leases, demises and grants to divers others persons, of sundry manors, lordships, ferms, meases, lands, tenements, meadows, pastures, or other hereditaments, for term of life or lives, or for term of years, by writing ünder their seal or seals, containing certain conditions, covenants and agreements to be performed, as well on the part and behalf of the said lessees and grantees, their executors and assigns, as on the behalf of the said lessors and grantors, their heirs and successors ; (2) and forasmuch as by the common law of this realm, no stranger to any covenant, action or condition, shall take any advantage or benent of the same, by any means or ways in the law, but only such as be parties or privies thereunto, by the reason whereof, as well all grantees of reversions, as also all grantees and patentees of the King our sovereign lord, of sundry manors, lordships, granges, ferms, meases, lands, tenements, meadows, pastures, or other hereditaments late belonging to monasteries, and other religious and ecclesiastical bouses dissolved, suppressed, renounced, relinquished, forfeited, given up, or by other means come to the hands and possession of the King's majesty since the fourth day of February the seven and twentieth year of his most noble reign, be excluded to have any entry or action against the said lessees and grantees, their executors or assigns, which the lessors before that time might by the law have had against the same lessees for the breach of any condition, covenant or agreement comprised in the indentures of their said leases, demises and grants : (3) be it there. fore enacted by the King our sovereign lord, the lords spiritual and temporal, and the commons, in this present parliament assembled, and by authority of the same, That as well all and every person and persons, and bodies politice their heirs, successors and assigns, which have or shall have any gift or grant of our said sovereign lord by his letters patents of any lordships, manors, lands, tenements, rents, parsonages, tithes, portions, or any other hereditaments, or of any reversion or reversions of the same, which did belong or appertain to any of the said monasteries, and other religious and ecclesiastical houses, dissolved, suppressed, relinquished, forfeited, or by any other means come to the King's hands since the said fourth day of February the seven and twentieth year of his most noble reign, or which at any time heretofore did belong or appertain to any other person or persons, and after came to the hands of our said sovereign lord, (4) as also all other persons being grantees or assignees to or by our said sovereign lord the King, or to or by any other person or persons than the King's highness, and the heirs, executors, successors and assigns of every of them, (5) shall and may have and enjoy like advantages against the lessees, their executors, administrators and assigns, by entry for non-payment of the rent, or for doing of waste or other forfeiture : (6) and also shall and may have and enjoy all and every such like, and the same advantage, benefit and remedies by action only, for not performing of other conditions, covenants or agreements contained and expressed in the indentures of their said leases, demises or grants, against all and every the said lessees and farmers and grantees, their executors, administrators and assigns, as the said lessors or grantors themselves, or their heirs or successors, ought, should, or might have had and enjoyed at any time or times, (7) in like manner and form as if the reversion of such lands, tenements or hereditaments had not come to the hands of our said sovereign lord, or as our said sovereign lord, his heirs and successors, should or might have had and enjoyed in certain cases, by virtue of the act made at the first session of this present parliament, if no such grant by letters patents bad been made by his Highness.
II. Moreover be it enacted by authority aforesaid, That all farmers. Jessees and grantees of lordships, manors, lands, tenements, rents, parsonages, tithes, portions, or any other hereditaments for term of years, life or lives, their executors, administrators and assigns, shall and may have like action, advantage and remedy against all and every person and persons and bodies politic, their heirs, successors and assigns, which have or shall have any gift or grant of the King our sovereign lord, or of any other person or persons, of the reversion of the same manors, lands, tenements, and other hereditaments so Tetten, or any parcel thereof, for any condition, covenant or agreement contained or expressed in the indentures of their lease and leases, as the same lessees, or any of them might and should have had against the said lessors and grantors, their heirs and successors; (2) all benefits and advantages of recoveries in value by reason of any warranty in deed or in law by voucher or otherwise only excepted.
[Reported 5 Co. 16 a.] SPENCER and his wife brought an action of covenant against Clark, assignee to J., assignee to S., and the case was such : Spencer and his wife by deed indented, demised a house and certain land (in the right of the wife) to S. for a term of 21 years, by which indenture S. covenanted for him, his executors, and administrators, with the plaintiffs, that he, his executors, administrators, or assigns, would build a brick wall upon part of the land demised. &c. S. assigned over his term to J., and J. to the defendant; and for not making of the brick wall the plaintiff brought the action of covenant against the defendant as assignee: and after many arguments at the bar, the case was excellently argued and debated by the justices at the bench : and in this case these points were unanimously resolved by SIR CHRISTOPHER WRAY, Chief Justice, Sir THOMAS GAWDY, and the whole court. And many differences taken and agreed concerning express covenants, and covenants in law, and which of them run with the land, and which of them are collateral, and do not go with the land, and where the assignee shall be bound without naming him, and where not; and where he shall not be bound although he be expressly named, and where not.
1. When the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is quodammodo annexed and appurtenant to the thing demised, and shall go with the land, and shall bind the assignee although he be not bound by express words: but when the covenant extends to a thing which is not in being at the time of the demise made, it cannot be appurtenant or annexed to the thing which hath no being: as if the lessee covenants to repair the houses demised to him during the term, that is parcel of the contract, and extends to the support of the thing demised, and therefore is quodammodo annexed appurtenant to houses, and shall bind the assignee although he be not bound expressly by the covenant: but in the case at bar, the covenant concerns a thing which was not in esse at the time of the demise made, but to be newly built after, and therefore shall bind the covenantor, his executors or administrators, and not the assignee, for the law will not annex the covenant to a thing which hath no being.
2. It was resolved that in this case, if the lessee had covenanted for him and his assigns, that they would make a new wall upon some part of the thing demised, that for as much as it is to be done upon the land demised, that it should bind the assignee; for although the covenant doth extend to a thing to be newly made, yet it is to be made upon the thing demised, and the assignee is to take the benefit of it, and therefore shall bind the assignee by express words. So on the other side, if a warranty be made to one, his heirs and assigns, by express words, the assignee shall take benefit of it, and shall have a Warrantia Chartæ, F. N. B. 135, & 9 E. 2. Garr' de Charters 30, 36 E. 3. Garr. 1, 4 H. 8. Dyer 1. But although the covenant be for him and his assigns, yet if the thing to be done be merely collateral to the land, and doth not touch or concern the thing demised in any sort, there the assignee shall not be charged. As if the lessee covenants for him and his assigns to build a house upon the land of the lessor which is no parcel of the demise, or to pay any collateral sum to the lessor, or to a stranger, it shall not bind the assignee, because it is merely collateral,
e benefit of it, cany de ChartersPor him and
and in no manner touches or concerns the thing that was demised, or that is assigned over ; and therefore in such case the assignee of ilie thing demised cannot be charged with it, no more than any other stranger.
3. It was resolved, if a man leases sheep or other stock of cattle, or any other personal goods for any time, and the lessee covenants for him and his assigns at the end of the time to deliver the like cattle or goods as good as the things letten were, or such price for them; and the léssee assigns the sheep over, this covenant shall not bind the assignee, for it is but a personal contract, and wants such privity as is between the lessor and lessee and his assigns of the land in respect of the reversion. But in the case of a lease of personal goods_there is not any pririty, nor any reversion, but merely a thing in action in the personalty, which cannot bind any but the covenantor, his executors, or administrators, who represent him. The same law, if a man demises a house and land for years, with a stock or sum of money rendering rent, and the lessee covenants for him, his executors, administrators, and assigns, to deliver the stock or sum of money at the end of the term, yet the assignee shall not be charged with this covenant; for although the rent reserved was increased in respect of the stock or sum, yet the rent did not issue out of the stock or sum, but out of the land only; and therefore as to the stock or sum the covenant is personal, and shall bind the covenantor, his executors and administrators, and not his assignee ; and it is not certain that the stock or sum will come to the assignees' hands, for it may be wasted, or otherwise consumed or destroyed by the lessee, and therefore the law cannot determine at the time of the lease made, that such covenant shall bind the assignee.
4. It was resolved, that if a man makes a feoffment by this word dedi, which implies a warranty, the assignee of the feoffee shall not youch ; but if a man makes a lease for years by this word concessi or demisi, which implies a covenant, if the assignee of the lessee be evicted, he shall have a writ of covenant; for the lessee and his assignee hath the yearly profits of the land which shall grow by his labor and industry for an annual rent, and therefore it is reasonable when he hath applied his labor, and employed his cost upon the land, and be evicted (whereby he loses all) that he shall take such benefit of the demise and grant, as the first lessee might, and the lessor hath no other prejudice than what his especial contract with the first lessee hath bound him to.
5. Tenant by the curtesy, or any other who comes in in the post shall not vouch (which is in lieu of an action). But if a ward be granted by deed to a woman who takes husband, and the woman dies, the husband shall vouch by force of this word grant, although he comes to it by act in law. So if a man demises or grants land to a woman for years, and the lessor covenants with the lessee to repair the houses during the term, the woman marries and dies, the husband shall have an action of covenant as well as on the covenant in law on these words (demise or grant) as on the express covenant. The same law is of