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tenant by Statute-merchant or Statute-staple, or elegit of a terın, and he, to whom a lease for years is sold by force of any execution, shall have an action of co-tenant in such case as a thing annexed to the land, although they come to the term by act in law; as if a man grants to lessee for years, that he shall have so many estovers as will serve to repair his house, or as he shall burn in his house, or the like, during the term, it is as appurtenant to the land, and shall go with it as a thing appurtenant, into whose hands soeyer it shall come.
6. If lessee for years covenants to repair the houses during the term, it shall bind all others as a thing which is appurtenant, and goeth with the land in whose hands soever the term shall come, as well those who come to it by act in law, as by the act of the party, for all is one haying regard to the lessor. And if the law should not be such, great prejudice might accrue to him ; and reason requires, that they, who shall take benefit of such covenant when the lessor makes it with the lessee, should on the other side be bound by the like covenants when the lessee makes it with the lessor.
7. It was resolved, that the assignee of the assignee should have an action of covenant. So of the executors of the assignee of the assignee; so of the assignees of the executors or administrators of every assignee, for all are comprised within this word (assignees), for the same right which was in the testator, or intestate, shall go to his executors or administrators, as if a man makes a warranty to one, his heirs and assigns, the assignee of the assignee shall vouch, and so shall the heirs of the assignee: the same law of the assignee of the heirs of the feoffee, and of every assignee. So every one of them shall have a writ of Warrantia Chartoe. Vide 14 E. 3. Garr. 33. 38 E. 3. 21, 36 E. 3. Garr. 1. 13 E.1. Garr. 93. 19 E. 2. Garr. 85, &c. For the same right, which , was in the ancestor, shall descend to the heir in such case without express words of the heirs of the assignees.
Observe, reader, your old books, for they are the fountains out of which these resolutions issue, but perhaps by these differences the fountains themselves will be made more clear and profitable to those who will make use of them. For example in 42 E. 3, 3, the case is ; grandfather, father, and two sons, the grandfather was seised of the manor of D. whereof a chapel was parcel, a prior with the assent of his covent by deed covenanted for him and his successors, with the grandfather and his heirs, that he and his covent would sing all the week in his chapel, parcel of the said manor, for the lords of the said manor and his servants, &c. The grandfather did enfeoff one of the manor in fee who gave it the younger son and his wife in tail; and it was adjudged that the tenants in tail, as terretenants (for the elder brother was heir; should have an action of covenant against the prior, for the covenant is to do a thing which is annexed to the chapel, which is within the manor, and so annexed to the manor, as it is there said. And Finchden related, that he had seen it adjudged, that two coparceners made partition of land, and one did covenant with the other to acquit him of suit, which was due, and that coparcener to whom the covenant was made did alien, and the suit was arrear; and the feoffee brought a writ of covenant against the coparcener to acquit him of the suit; and the writ was inaintainable, notwithstanding he was a stranger to the covenant, because the acquittal fell upon the land ; but if such covenant were made to say divine service in the chapel of another, there the assignee shall not have an action of covenant, for the covenant in such case cannot be annexed to the chapel, because the chapel doth not belong to the covenantee, as it is adjudged in 2 H. 4, 6 b. But there it is agreed, that if the covenant had been with the lord of the manor of D. and his heirs, lords of the manor of D. and inhabitants therein, the covenant shall be annexed to the manor, and there the terretenant shall have the action of covenant, without privity of blood. Vide 29 E. 3, 48, and 30 E. 3, 14, Simpkin Simeon's Case, where the case was, that the Lady Bardolf by deed granted a ward to a woman who married Simpk. S., against whom the Queen brought a writ of right of ward, and they vouched the Lady Bardolf; and afterwards the wife died, by which the chattel real survived to the husband (and resolved that the writ should not abate). The vouchee appeared, and said, What have you to bind me to warranty? The husband showed, how that the lady granted to his wife before marriage the said ward ; the vouchee demanded judgment for two causes.
1. Because no word of warranty was in the deed; as to that, it was adjudged that this word (grant) in this case of grant of a ward (being a chattel real) did import in itself a warranty.
2. Because the husband was not assignee to the wife, nor privy. As to that it was adjudged that he should vouch, for this warranty implied in this word (grant) is in case of a chattel real so annexed to the land that the husband who comes to it by act in law, and not as assignee, should take benefit of it. But it was resolved by Wray, Chief Justice, and the whole court, that this word (concessi or demisi) in case of freehold or inheritance doth not import any warranty. 11 H. 6, 41, acc, vide 6 H. 4. 12 H. 4, 5. 1 H. 5, 2. 25 H. 8. Covenant Br. 32. 28 H. 8. Dyer 28. 48 E. 3, 22. F. N. B. 145. C. 146, & 181. 9 Eliz. Dyer, 257. 26 H. 8, 3. 5 H. 7, 18. 32 H. 6, 32. 22 H. 6, 51. 18 H. 3. Covenant, 30. Old N. B. Covenant, 46 H. 3, 4. 38 E. 3, 24. See the Statute of 32 H. 8. c. 24, 34, which Act was resolved to extend to covenants which touch or concern the thing demised, and not to collateral covenants.?
1 See Gorton v. Gregory, 3 B. & S. 90 ; Norman v. Wells, 17 Wend. 136; Hunt v. Danforth, 2 Curt. C. C. 592, 603; Masury v. Southworth, 9 Ohio St. 340.
BARNARD v. GODSCALL.
King's BENCH. 1612.
(Reported Cro. Jac. 309.) COVENANT on an indenture of demise of a house to the defendant.
The breach assigned was, for not repairing the house within a month after warning given the first of January, 9 Jac. 1, there being an express covenant on the part of the lessee for himself, his executors and assigns, that he would repair within a month after warning.
The defendant pleads, that long time before that warning, viz. 3 Jac. 1, he assigned over his term to J. S., who had paid his rent always afterward to the plaintiff, and the plaintiff accepted thereof; and avers performance of all the covenants until the assignment.
The plaintiff thereupon demurred : for this assignment doth not take from the lessor his advantage of the express covenant; and notwithstanding his acceptance of the rent by the hands of the assignee, set he may charge the lessee or assignee at his election
All the COURT was of that opinion ; wherefore, without argument, it was adjudged for the plaintiff. And WILLIAMS said he knew it to be so adjudged when he was a serjeant, upon a demurrer in the Common Pleas. And in this term there was another case, Varnis v. Goodcheape, where a like writ of covenant was brought against a lessee for years, on an express covenant for reparations, and such a plea pleaded, and a demurrer thereupon; and adjudged accordingly for the plaintiff.
MAYHO v. BUCKHURST.
King's BENCH. 1617.
(Reported Cro. Jac. 438.] ERROR of a judgment in the King's Bench, in a writ of covenant brought against him as assignee of one Thomas Mayho; for that the lessee covenanted to pay annually during the term of twenty-one years, twenty shillings to the churchwardens of Saint Saviour's in Southwark, and to repair the houses and leave them well repaired at the end of the term ; and because the assignee did not pay the rent, nor repair the said tenements, the action was brought : and judgment being given upon a nihil dicit, and entire damages found, it was adjudged for the plaintiff.
And now error assigned, because the assignee is not chargeable with this covenant of the payment of an annual sum, but it is a mere collat
eral covenant: also, it is not well assigned ; for it is not shown for what time the sum was arrear.
And all the JUSTICES and BARONS held that this declaration was not good for both causes; and therefore, the damages being entire, the judgment was reversed."
CONGHAM v. KING.
[Reported Cro. Car. 221.] COVENANT against the defendant as assignee of an assignee, for not repairing of an house let inter alia.
The defendant takes issue upon the mean assignment of the lease laid in the declaration.
Wright, after verdict for the plaintiff, took divers exceptions to the declaration in arrest of judgment, that the plaintiff shows the lease to be to J. S., and by him devised to J. D., and made J. N. his executor, and that he virtute legationis entered and assigned to W. S., and he entered and assigned one house, parcel of the premises, to the defendant, who entered and made spoil in an hall and chamber, parcel of the demised premises, &c. One exception was, Because he shows that the devisee entered and was possessed virtute legationis, and doth not say that 'the executor assented. — Sed non allocatur : for being alleged, that he thereof was possessed virtute legationis, and issue being taken upon a collateral matter, it shall be intended that be entered with the assent of the executor.
Another exception was, Because the breach was assigned in such an house parcel præmissorum, and doth not say promissorum prædimissorum, and to him assigned; for in the lease are divers things erAcepted, and it may be that this is parcel of the things excepted, or not parcel of the premises assigned. — Sed non allocatur : for præmissa shall be intended prædimissa et assignata, and shall not be extended to any lands not dimissa.
The next exception alleged was, That the defendant is but assignee of parcel of the things demised ; and then he is not chargeable with this covenant, no more than the assignee of parcel shall be chargeet in debt for the rent; but the action lies against the first lessee, as it is held, Walker's Case, 3 Co. 23. — Sed non allocatur: for this covenant is dividable, and follows the land, with which the defendant, as assignee. is chargeable by the common law, or by the Statute of 32 Hen. 8, C. 37. Whereupon it was adjudged for the plaintiff.
(Reported 1 Salk. 196.] By indenture H. leases a house, excepting two rooms, and free passage to them. The lessee assigns, and the assignee disturbs the lessor in the passage thereto, and for this disturbance the lessor brought covenant. Et PER CUR. The action lies; the diversity is this, If the disturbance had been in the chamber, it is plain then no action of covenant would have lain ; because it was excepted, and so not demised : Aliter, where the lessee agrees to let the Tessor have a thing out of the demised premises, as a way, common, or other profit apprendre ; in such case covenant lies for the disturbance. Vide 3 Cro. 657; Mo. 553. And this covenant goes with the tenement, and binds the assignee. Judgment pro quer.
HOLFORD v. HATCH.
[Reported 1 Doug. 183.) This was an action of covenant, for rent in arrear, brought against the defendant as assignee of one Saunders. The declaration stated in the common form), that the plaintiff demised to Saunders for seven years, by virtue whereof he entered and was possessed, and that afterwards, all the estate, right, title, and interest, of Saunders, in the premises, came to the defendant, by assignment thereof, by virtue whereof he entered and was possessed, and that, after the assignment, rent had become due, which the defendant had not paid. The defendant pleaded, that all the estate, right, title, and interest, of Saunders in the premises, did not come to him by assignment thereof in manner and form as the plaintiff had alleged.
On the trial, it appeared, that the defendant was in possession of the premises during the time when the rent in arrear became due, but that, by the deed under which he held, they were conveyed to him, by Saunders, for a day, or some days less than the original term, and that he had actually surrendered them before the action was brought. Some receipts also were produced for rent which had been paid by the defendant to the plaintiff, and which run thus : “ Received of Saunders by the hands of Hatch."
Upon this evidence, it was contended, at the trial, which came on