Page images
PDF
EPUB

compulsory on the directors. Within the district, therefore, to which the Building Act applies, this covenant provides a fund for the rebuilding of the premises, which the owner has a right to require shall be applied to that purpose; and then it is clear, that the assignee has a direct interest in having the insurance kept up. But I think, also, that if the premises were in any other part of the kingdom, this would be a covenant that would pass to an assignee. A covenant in a lease which the covenantee cannot, after his assignment, take advantage of, and which is beneficial to the assignee as such, will go with the estate assigned. If this were not the law, the tenant would hold the estate discharged from the performance of one of the conditions on which it was granted to bim. The original covenantee could not avail himself of this covenant; he sustains no loss by the destruction of the buildings. and therefore has no interest to have them insured. In The Sadler's Company v. Badcock, 2 Atkyns, 557, Lord Hardwicke says that Lord Chancellor King, in the case of Lynch v. Dayrell, held, that a person who had assigned his interest in a house before the fire happened which consumed it, had no right to the money under the policy. I cannot say whether a court of equity would take any steps to secure the application of the money insured for the benefit of the estate. I presume that if a cou: of equity would assist a covenantee to have the money, recovered under the policy by his tenant, expended on the estate, it would render the same assistance to an assignee. If a court of equity will not interfere, either for the one or the other, still this covenant is as beneficial to an assignee as it was to the covenantee. It secures to the tenant the means of performing his covenant, and to the landlord a solvent instead of a ruined tenant. It is a covenant beneficial to the owner of the estate, and to no one but the owner of the estate; and therefore may be said to be beneficial to the estate, and so directly within the principle on which covenants are made to run with the land. At the time that the 32 Hen. 8, c. 34, was passed, an immense quantity of land passed from the dissolved monasteries to the King, and from the King to the most favored and powerful of his suhjects. Much of this land was on lease, and both the King and his Parliament must have been anxious that the assignees of the reversion should be in as good a situation as the lessors were.

This Statute expressly enacts, “ that grantees of estates shall have and enjoy the like advantages against lessees, their executors, &c., by entry for nonpayment of rent, or for doing of waste or other forfeiture, and the same benefit and remedy by action for not performing of other conditions. covenants, or agreements, as the lessors or grantors themselves miglit have had.” Lord Coke (Co. Lit. 215 b) limits the operation of these general words to " such conditions as are incident to the reversion as rent, or for the benefit of the estate.” He adds that the Statute does not extend to " covenants for payment of a sum in gross, delivery of corn, wood, or the like.” A sum in gross is in the nature of a fine which belongs to the lessor, and can never be intended for an assignee.

By the deliveries of corn and wood were meant deliveries of those articles at the mansion-house of the lessor, and not rents payable in corn or wood, without any stipulation as to the place where the articles were to be delivered. These deliveries at the mansion-house were inconsiderable in value, and would be of no use to the assignee, unless he became the assignee of the mansion as well as the farm. In 5 Coke, 18, it is said that the 32 H. 8 was resolved to extend to covenants which touch or concern the thing demised, and not to collateral covenants.” In Spencer's Case, Moore, 159, the same doctrine is laid down in the same terms, and this case is put by Gawdy, J., and assented to by all the judges and serjeants, - that a covenant that a lessor will, at the end of the term, grant another lease, runs with the land.” The covenant here mentioned is not beneficial to the estate granted, in the strict sense of the words, because it has no effect until that estate is at an end, but it is beneficial to the owner, as owner, and to no other person. By the terms, collateral covenants, which do not pass to the assignee, are meant such as are beneficial to the lessor, without regard to his continuing the owner of the estate. This principle will reconcile all the cases.

In Webb v. Russell, 3 Term Rep. 402, Lord Kenyon considers grantees or assignees to stand in the same situation, and to have the same remedy against the lessees, as heirs at law of individuals, or successors in the case of corporations, had before the Statute. For these reasons I am of opinion that the plaintiff is entitled to judgment.

Judgment for the plaintiff1

VYVYAN V. ARTHUR.

KING's BENCH. 1823.

[Reported 1 B & C. 410.] COVENANT by the devisee of the lessor against the administratrix of the lessee. The declaration stated that at the time of making the lease Thomas Vyvyan the lessor was seised in fee of the demised tenements with the appurtenances, and also of a certain mill; and being so seised, on the 24th June, 1779, by indenture demised to N. D. Arthur, his executors, administrators, and assigns, a close of land together with certain common of pasture in the indenture described. Habendum for ninety-nine years, if three persons therein mentioned should so long live, yielding and paying to the lessor, his heirs and assigns, certain rents, sums of money, payments, and returns; and also doing certain suits and services in the indenture mentioned ; and also doing suit to the mill of the said Thomas, his heirs and assigns,

See Thomas v. Vonkapf, 6 G. & J. 372; Masury v. Southworth, 9 Ohio St. 340.

called Tregamere mill, by grinding all such corn there as should grow in or upon the close thereby demised during the term. The declaration then stated the entry of the lessee, and that the lessor being seised in fee of the reversion of the demised premises, by his will devised the same, and also the said mill, unto three persons in the will mentioned, their heirs and assigns, to the use of the plaintiff for his life; that the lessor died; and that by force of the Statute made for transferring uses into possession, the plaintiff became seised of the reversion in the demised premises and of the mill for the term of his life; that the lessee died intestate during the continuance of the term; and that administration was duly granted to the defendant; and that one of the persons for whose life the lease was granted was still living. Breach, that after the plaintiff became seised of the reversion of the demised premises and of the mill, and during the lifetime of the lessee, corn grew upon the demised premises which ought to have been ground at the mill; yet the lessee in his lifetime, and the defendant since his death, did not do suit to the mill of the plaintiff, by grinding there the corn so grown upon the demised premises, but wholly neglected so to do. To this declaration there was a general demurrer.

F. Pollock, in support of the demurrer.
Gaselee, contra.

BAYLEY, J. I am of opinion that this is a covenant which runs with the land, so as to entitle the assignee of the reversion to maintain this action, which is brought against the defendant, not as assignee, but as personal representative of the lessee. An action at the suit of the assignee of the reversion is maintainable in some cases at common law; in others, under the Statute of the 32 Hen. 8. I rather think that this case belongs to the former class. The lease contains a reddendum, and whatever services or suits are thereby reserved partake of the character of rent. Now, one of the services to be rendered to the lessor in this case is, that the lessee shall grind all the corn grown upon the demised premises at the lessor's mill. It is true that rent goes with the reversion of the land in respect of which it is reserved. But in this case, at the time of granting the lease, the lessor was seised in fee of the mill, as well as of the reversion of the premises devised; and, therefore, so long as the property in the mill and the reversion of the demised premises continued to be in the same person, the suit to the mill would continue to be a suit due to the owner of the reversion of the demised premises, and would, therefore, in that respect, be in the nature of a rent. It is by no means unusual for the owner of a mansion and estate to stipulate with his tenants that they should carry coals to his mansion, and perform other similar services, and as long as the ownership of the mansion and the estate continues in the same person, those services are in the nature of rent, to be rendered to the reversioner of the lands demised. Now here, the plaintiff is the reversioner of the thing demised, and also owner of the mill. In the case cited from the 42 Ed. 3, the prior and his successors took no interest in the land, yet the corenant

T

and to the mill.

to sing in the chapel was held to run with the land. Here the covenantor is tenant of land to the covenantee, and the suit to be done to the mill is in respect of the land demised. It is not necessary for us to decide what the case would be if the ownership of the land demised and the mill had been severed. Here the lessor continued owner of the reversion of the demised premises and of the mill froin the time of granting the lease till the time of his death, and the plaintiff, as his devisee, then became entitled to both, and now continues so. My judgment is founded entirely on the unity of title to the reversion of the land demised

HOLROYD, J. The case cited from the Year-books of the 42 Edw. 3, seems to me to govern the present, and is much stronger. I think this is a covenant running with the land at common law. Here the close Was leased to the lessee, his executors, administrators, and assigns, yielding the rents, and doing the suits and services therein mentioned. The suits and services are to be rendered by the lessee, his executors, administrators, and assigns, to whom the lands are leased ; and this suit is to be rendered to the mill of the lessor, his heirs and assigns; so that it

appears to have been the intention that the assignees of the lessor and lessee should be bound, for they are expressly named, and that suit should be done to the mill as long as it continued to be the property of the lessor, his heirs or assigns. It has been said that the thing to be done does not affect the land. But it affects the profits of the land, and, generally speaking, they are considered the same thing as the land itself; for if the lessee in this case had had a mill of his own, he would still have been bound to grind the corn grown upon the demised premises at the lessor's mill, and the price paid for the grinding of such corn would be in the nature of a varying rent to the lessor, and a deduction from the profits of the lessee. But it is said that as the thing required to be done by the covenant is not to be done upon the land demised,

other land which might or might not continue to be the land of the lessor, it does not, therefore, respect the land demised, and, consequently, that the assignee cannot take advantage of the covenant. I am of opinion, however, that inasmuch as the thing to be done is to be done at a mill which belonged to the lessor at the time of making the lease, and which has always continued to belong to the owner of the reversion of the land demised, that the covenant to be implied from the reddendum is in the nature of a covenant to render a rent, and, consequently, that it is a covenant that runs with the land. It is said that it is not in the nature of a rent, because it will not follow the reversion, for if the property in the mill and the reversion of the demised premises became severed, the service must be rendered to the owner of the mill, and not to the owner of the reversion of the demised premises. As long, however, as the mill and the reversion of the demised premises belong to the same person, the suit to the mill is a service to be rendered to the reversioner of the demised premises; and so long, therefore, it would follow the reversion, and in that respect partake of the

but

upon

nature of rent. Now here, at the time of granting the lease, the lessor was seised in fee of the land demised, and of the mill, and continued so seised of the latter, and of the reversion in the former, until his death, when his interest in both vested in the plaintiff as devisee. From the time of granting the lease to the present time, the grinding of the corn at the mill was in the nature of a rent to the reversioner, issuing out of and rendered in respect of the demised premises. For these reasons it appears to me that the assignee may, under the circumstances, take advantage of the covenant, and, consequently, that the plaintiff is entitled to the judgment of the court.

Best, J. I am of the same opinion. Here, the reversion of the land demised, and the property in the mill, belonged to the lessor during his life, and at his death passed to his devisee, and they now continue united in him. At all times, therefore, the grinding of the corn at the mill in question was in the nature of a rent-service to the owner of the reversion of the demised premises. The general principle is, that if the performance of the covenant be beneficial to the reversioner in respect of the lessor's demand, and to no other person, his assignee may sue upon it; but if it be beneficial to the lessor, without regard to his continuing owner of the estate, it is a mere collateral covenant, upon which the assignee cannot sue. I think that the performance of the covenant in this case, in the events that have occurred, would always have been beneficial to the owner of the reversion of the demised premises, and to no other person, and, therefore, that it is a covenant which runs with the land.

Judgment for the plaintiff

MINSHULL V. OAKES.

EXCHEQUER. 1858.

(Reported 2 H. & N. 793.] POLLOCK, C. B. Two entirely distinct questions arose in this case. The declaration was on a demise to the lessee, his executors, administrators, and assigns, in consideration of the rents and covenants on the part and behalf of the lessee and his assigns to be paid, done, and performed, of a messuage and lands, with liberty to the lessee, his executors, administrators, and assigns, to make any erections or buildings. The lessee covenanted for himself, his heirs, executors, and administrators (not saying assigns), that he, his heirs, executors, administrators, or assigns, would pay rent; and that he, his executors or administrators, would repair the messuage and farm, outhouses, barns, stable, and all other erections and buildings which should or might be

1 The opinion only is given.

« PreviousContinue »