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15th day of February, 1810, by lease and release, conveyed to the plaintiff the reversion of part of the said demised premises, whereby he became seised of the reversion of that part of the premises in fee. The declaration then alleged breaches of covenant for not repairing that part of the premises, the reversion of which had been conveyed to plaintiff. General demurrer and joinder.

Selwyn, in support of the demurrer.

Moore, contra.

BAYLEY, J. Although it has never been expressly decided that the assignee of the reversion of part of the demised premises can maintain this action against the lessee, yet, when the question comes fairly to be considered, I cannot entertain any doubt that covenant will lie both by and against the assignee of the reversion of part of the premises. The 32 H. 8, c. 34, § 1, enacts, "that the grantees or assignees of any reversion or reversions shall have the like advantages against the lessees by entry for non-payment of the rent, or for doing of waste or other forfeiture, and also shall have all such like and the same advantage, benefit, and remedies, by action only, for not performing of other conditions, agreements contained and expressed in their leases, demises, or grants against the lessees, as the lessors or grantors themselves might have had at any time." The words therefore apply to conditions as well as to covenants, and are sufficiently large to include persons who are grantees of the reversion, either of the whole or part

covenants, or

of the property which is the subject of the lease. That part, however, which applies to conditions which in their very nature are entire, is necessarily confined to the assignees of the reversion of the whole of the premises. The authorities cited in the course of the argument to show that the assignees of the reversion of part are not within the Act, were cases of conditions, and do not apply to covenants. I do not agree to the distinction taken in the argument between the first and second sections of the Act, for the words used in both sections are substantially the same, and must receive the same construction. The only difference is, that the words in the first section apply to the assignee of the reversion; those in the second section, to the assignee of the term. Then, except in cases where the construction of the Statute is confined by the use of the word "condition," and the nature of the thing, good reason why the word "assignee" in the Statute should not be held to extend to the assignee of the reversion in part, as well as of the whole, of the premises. In Palmer v. Edwards, 1 Dougl. 187, it was held that the assignee of part of the premises from the lessee might maintain covenant against the lessor; and there Buller, J., considered the remedies as mutual. In Congham v. King [Cro. Car. 221], it was held that the lessor might maintain covenant against the assignee of part of the premises demised. These authorities seem to show that the severance of the estate demised does not take away the mutual remedies. I have always understood it to be clear law, that covenant was maintainable by the assignee of the reversion in part. In Kitchen v. Buckly

there is no

[1 Lev. 109] this objection, if valid, would have succeeded; and it can hardly be supposed that if it had been considered valid, it would have been overlooked. In Pyot v. Lady St. John, Cro. Jac. 329, a person seised in fee of one messuage, and possessed of a term of years in other premises, demised both for ten years to Lady St. John, by one lease, and then, by separate deeds, conveyed the reversion in fee, and the rever sion for years to Pyot. On an action of covenant being brought, it was objected that Pyot ought to have brought several actions, but no objection was taken that he was possessed, by each separate deed, only of the reversion of part of the premises. The court held, that though he might have brought several actions, still the bringing only one action. was well enough. But if this objection had been valid, that decision could not have taken place; because it would have been an obvious answer to say that several actions would not lie, inasmuch as in each it must have appeared that Pyot was only assignee of the reversion in part. Upon authority, therefore, as well as principle, I am of opinion that this action is maintainable; and, therefore, that there must be judgment for the plaintiff.

ABBOTT, J. I am of the same opinion. The Statute makes no material distinction between the assignee of the reversion and the assignee of the term. It has been decided that the assignee of part of the premises for the term may maintain this action, and it therefore appears to me to follow that the assignee of the reversion of part may do the same.

HOLROYD, J. I am also of opinion that this action is maintainable. The cases cited in argument apply only to conditions, with respect to which the Statute expressly enacts "that assignees shall have the like advantages against the lessees by entry for non-payment of rent, or for doing of waste or other forfeiture, as the lessors would have had." Now if the lessor assigned the reversion of part of the premises to another, his right of entry would be gone, for in Knight's Case, 5 Coke, 55 b, it was expressly held that the severance of any part of the reversion destroyed the whole condition (which was entire, and the breach of which gave one entire right of entry into the whole premises on non-payment of rent); that being so, the lessor at common law would have no right, in such a case, to vacate the lease by entry, and consequently his assignee would not have that right under the Statute. But that does not apply to the case of covenants, for there, although the lessor has granted away part of the demised premises, still at common law he might maintain covenant against the lessee; and therefore it seems to me that his assignee of part of the demised premises is entitled under the Statute to maintain that action.

Judgment for plaintiff.1

1 In Shepherd's Touchstone, 176, the following is stated, among the covenants of which grantees shall take advantage by the Stat. H. 8: "As where a lessee for life or years doth covenant with his heirs to keep the houses demised in good reparation, or the like, and after the lessor doth grant away the reversion of all, or part of the houses

VERNON v. SMITH.

KING'S BENCH. 1821.

[Reported 5 B. & Ald. 1.]

COVENANT by the assignee of the lessor against the lessee. The declaration stated that one J. Hance, the lessor, before the time of making the lease, was lawfully possessed of the tenements and premises for the residue and remainder of a certain term of years, whereof seven years were then unexpired; which tenements and premises, with the appurtenances, then were and thence hitherto have been and still are situate within the weekly bills of mortality mentioned in the 14 G. 3, c. 78; and being so possessed thereof, he, the said J. Hance, by indenture, demised and leased to the defendant the tenements and premises, with the appurtenances, habendum, for seven years, at a certain rent therein mentioned; covenant by the defendant that he should and would forthwith, at his own expense, and from time to time during the term, insure in some of the public offices in London or Westminster, for the purpose of insuring houses from casualties by fire, the messuage, dwelling-house, coach-house, stable, and premises thereby demised or thereafter to be erected and built thereon, to the amount of £800, in the joint names of the defendant, his executors, administrators, or assigns, and of Robert Stone, the ground landlord of the premises, his heirs or assigns; and should and would, at the request of Hance, or of the ground landlord, their heirs or assigns, produce the policy and receipts. for such insurance. The declaration set out the proviso in the lease for re-entry, on breach of any of the covenants.

It then stated the

defendant's entry into the premises, and that, after the making of the indenture, the term was assigned by Hance to the plaintiff. The breach assigned was, that the defendant did not insure. The second count stated, that, before the making of the demise to the defendant, in the first count mentioned, and also before and at the time of the making of the demise thereinafter mentioned, Robert Stone was seised in fee of and in the said demised tenements, and by a certain indenture demised the same to J. Hance, habendum, for 85 years and six months. And that J. Hance, by that indenture, covenanted to insure the premises from fire, to the amount of three fourths of the value thereof, in the joint names of himself and Stone, with a proviso for re-entry, in case non-performance of the covenants. It then stated, that three fourths of the value of the premises amounted to £800, and that, by reason of

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to J. S., in this case J. S. shall take advantage for any breach of the covenant in his time, but not for any breach before the time the reversion was granted." And Pime's Case, Mich. 8 Jac., is cited. — REP.

See Attoe v.

Hemmings, 2 Bulst. 281; Co. Lit. 215 a.

the said demised premises remaining uninsured, Stone brought an action of ejectment for the forfeiture, and the plaintiff was forced to pay the costs to him, amounting to £500, and also to sustain his own costs, amounting to £1000. Breach, that the defendant had not kept the covenant made by him, as stated in the first count. To this declaration, there was a general demurrer and joinder.

Comyn, in support of the demurrer.

Chitty, contra.

Аввотт, С. Ј. It is not necessary, on the present occasion, to give any opinion on the effect of a covenant to insure premises situate without the limits mentioned in the 14 Geo. 3, c. 78. These premises lying within those limits, the effect of that Statute is, to enable the landlord, by application to the governors or directors of the insurance office, to have the sum insured laid out in rebuilding the premises. Now a covenant to lay out a given sum of money in rebuilding or repairing the premises, in case of damage by fire, would clearly be a covenant running with the land, that is, such a covenant as would be binding on the assignee of the lessee, and which the assignee of the lessor might enforce. Here the defendant does not covenant expressly in those words, but only that he will provide the means of having £800 ready to be laid out in rebuilding the premises in case of fire. But, connecting that covenant with the Act of Parliament, the landlord has a right to say that the money when recovered, shall be so laid out. It is, therefore, as compulsory on the tenant to have the money laid out in rebuilding, and as beneficial for the landlord as if the tenant had expressly covenanted that he would lay out the money he received in respect of the policy upon the premises. For these reasons I think that this is a covenant running with the land, for the breach of which the assignee of the lessor may sue; and, consequently, there must be judgment for the plaintiff.

BAYLEY, J. I am clearly of opinion that the assignee of the reversion is entitled to sue upon the covenant in question. The rule is, that if the covenant respect the thing demised, and be co-extensive with the estate of the person to whom it is made, and be made with him and his assigns, it passes to his assignee. The only question in this case is, Does this covenant respect the thing demised? It is a covenant to insure the premises against damage by fire. By the operation of the 14 Geo. 3, c. 78, § 83, the effect of that insurance is not merely to put into the pocket of the person effecting it, in case of loss, the amount of the money insured, but to entitle the owner of the estate to have that money laid out on the land; and if such be the effect of the covenant, it does affect the thing demised, as much as a covenant to repair or rebuild, in case of damage by fire. I think, therefore, that there must be judgment for the plaintiff.

HOLROYD, J. I am of the same opinion. If the covenant to insure to the amount of £800, in case of fire, could be considered as a covenant to pay a collateral sum to the lessor, the present action could not

be supported; but, taking that covenant, together with the Stat. 14 G. 3, c. 78, § 83, I think that the sum insured is not to be considered as a collateral sum, but as a sum which, by operation of law, must be laid out upon the premises. It is, therefore, a covenant to do a matter which concerns the land, and falls within the rule laid down in Spencer's Case, and by Lord Chief Justice Wilmot in Bally v. Wells [3 Wils. 25]. He there lays it down thus: "Covenants in leases, extending to a thing in esse, parcel of the demise, run with the land, and bind the assignee, though he be not named, as to repair, &c. And if they relate to a thing not in esse, but yet the thing to be done is upon the land demised, as to build a new house or wall, the assignees, if named, are bound by the covenants; but if they in no manner touch or concern the thing demised, as to build a house on other land, or to pay a collateral sum to the lessor, the assignee, though named, is not bound by such covenants; or if the lease is of sheep or other personal goods, the assignee, though named, is not bound by any covenant concerning them. The reasons why the assignees, though named, are not bound in the two last cases, are not the same. In the first case, it is because the thing covenanted to be done has not the least reference to the thing demised; it is a substantive, independent agreement, not quodam modo, but nullo modo, annexed or appurtenant to the thing leased. In the case of the mere personalty, the covenant doth concern and touch the thing demised; for it is to restore it or the value at the end of the term; but it doth not bind the assignee, because there is no privity, as there is in the case of a realty between the lessor and lessee and his assigns, in respect of the reversion; it is merely collateral in one case in the other it is not collateral, but they are total strangers to one another, without any line or thread to unite and tie them together, and to constitute that privity which must subsist between debtor and creditor to support an action." And in page 346, after citing several cases, from which he deduces the principle laid down, he says: "All these cases clearly prove that inherent' covenants, and such as tend to the support and maintenance of the thing demised, where assigns are expressly mentioned, follow the reversion and the lease, let them go where they will." In the present covenant, assigns are expressly included; and, inasmuch as the performance of the covenant would, in the event of the premises being destroyed or injured by fire, tend to the support and maintenance of the thing demised, I am of opinion that it falls within the rule laid down by Lord C. J. Wilmot, and, consequently, that there must be judgment for the plaintiff.

BEST, J. It has been argued, from the preamble to the 83d section of the 14 G. 3, c. 78, that this provision of the Statute only applies to cases where fraud is suspected. But the enacting part of the clause goes beyond the mischief mentioned in the preamble, and is large enough to embrace this case. For, under the first branch of it, where owner of the building requests the insurance company so to apply money, no suspicion of fraud is necessary to make such request

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