Page images
PDF
EPUB

mortgage has been forfeited, unless the mortgagee nas taken actual possession; therefore, they concluded that the absolute assignee also must be in actual possession, in order to be made liable; and they arrived at that construction of the authority of the case, by assuming that "the legal estate, by the English law, became vested absolutely in the mortgagee, and he was, in every respect, the assignee of the term."

Now, it is a perfect answer to that position, that in Eaton v. Jaques, the law as to mortgages was not so regarded by the court. It was expressly held that the mortgage "was a mere security;" and "was not an assignment of all the mortgagor's estate, right, title," &c. And the decision was put expressly upon that ground.

The case of Turner v. Richardson, 7 East. 335, another case relied upon, equally fails to sustain the doctrine of the court. The question there was, whether the defendants were assignees, on the ground that there was no sufficient evidence that they had accepted the assignment. The defendants were assignees of a bankrupt's estate for the benefit of his creditors; and, although they had advertised the premises for sale, it was held to be insufficient evidence of the acceptance of the premises under the assignment, on the ground that “ they were to consider whether it were for the benefit of the creditors that they should take this property, or waive it," and that advertising was only a mode to ascertain the value, without being evidence to commit the assignees to the acceptance of the property. The court construe this case as authority in favor of their doctrine, by saying that the ground upon which the case was put by the judges, was "illogical and unsound;" and, therefore, they assume that the true ground was the want of actual possession in the assignees. They may have been led into that conclusion by misunderstanding what was said by one of the judges. They charge Mr. Justice Grose with having differed from his associates, and to have decided that "it should have been left to the jury to say whether the defendants were in fact possessed of the premises." The fact is evident, from his opinion, that

he did not dissent from the others, and did not express the opinion that any question should have been submitted to the jury, but directly the contrary. All that he said upon that point was, that "the most which could have been left to the jury was, whether the defendants were in fact possessed of the premises; and it is plain from the evidence, that finding they were of no value, they never did enter into possession, and in the true sense of the issue, the defendants were not assenting to the assignment of these premises to them." But there is not one word of intimation that, admitting the defendants to be assignees, it was still necessary, in order to make them liable, that they should be in actual possession. On the contrary, it was expressly said by Lord Ellenborough, C. J., that "if they were assignees of the land, they would be liable."

The case of Stevenson v. Lambard, 2 East. 575, decided the point that the assignee of the lessee of a moiety of the premises was liable to the lessor, in an action of covenant, for a moiety of the rent. In other words, it determined the question that rent-service is apportionable. No other question was discussed or decided. It is not easy to perceive how the court, in the case under review, mistook that case as deciding anything in regard to the necessity of actual possession in the assignee, in order to make him liable on the covenants of the lessee. No such question was decided or even mooted in the opinion of the court.

Nor is there anything in Merceron v. Dowson, 5 Barn. & Cress. 479, as the court seem to have supposed, which can be construed as authority to sustain the proposition that the assignee was not liable, unless he was in the actual possession of the premises. It was an action for breach of covenant to repair, contained in a lease of ninety-nine years, against the defendant as the assignee of the whole premises. The defendant pleaded in bar that he was possessed of only onesixth of the premises for a part of the time, and one-third for the rest of the time, as a tenant in common with others. The plaintiff demurred to this plea. The court decided that the plea was bad in substance, because it could not be a bar to

the whole action, and that the defence could be set up only in abatement.

The doctrine of that case might be made to sustain the decision of the court in Damainville v. Mann, under proper pleadings, but not the doctrine upon which the court placed it. It was not decided that actual possession was necessary to make the assignee liable. Nor was it held that a tenant in common, in possession, was liable for the whole damages, by reason of the breach of the covenant. It was only held that such a defence could not be set up except by plea in abatement. It did not appear, in that case, that the defendant was in possession of the whole premises, but the contrary.

The decision of the chancellor in Astor v. Miller, 2 Paige, 68, was that a mortgagee of leasehold premises, who has never been in possession, or in the receipt of the profits of the estate, is not liable to an action upon the covenants contained in the lease, as the assignee thereof. But he conceded that the law was held differently in England, on the ground that the mortgagee there is regarded as the owner of the estate, and the mortgagor only as his tenant; while here, the mortgagor in possession is regarded as the real owner, for every substantial purpose, and the mortgagee has a mere chattel interest in the estate until he has foreclosed the equity of redemption, or been put in possession of the premises. Not a word is said, however, of requiring actual possession in the assignee to make him liable on the covenant of the lessee.

Such are the authorities upon which the court, in Damainville v. Mann, announced the strange doctrine that privity of estate could not exist between a lessor or his grantee of the reversion and the assignee of the lessee, except when the assignee was in possession of the premises. We submit that that doctrine is a manifest departure from the long and well established rules of the common law.

The reason assigned for the application of that doctrine to tenants in common is not sound. The tenant in possession has no advantages over the tenant out of possession. The one who receives the profits is liable to account to the others.

3. The rule does not apply to all the covenants which may be contained in a lease. The distinction, in this respect, is stated in the second resolution of Spencer's case, as follows: "If the thing to be done be merely collateral to the land, and doth not touch or concern the thing demised in any part, 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, 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 the thing demised cannot be charged with it, no more than any other stranger."

The rule stated in the second resolution is entirely consistent with the rule in the first resolution. The one relates more particularly to the character of the instrument, and the other to the character of the thing to be done. The instrument must be a lease, as distinguished from an assignment, and as distinguished from a contract merely executory. In other words, there must be a contract which vests and continues the right of possession to certain lands, and the thing agreed to be done or omitted must directly concern the demise of the premises.

In order to determine whether a person, other than the covenantor, is personally bound to perform the covenant, it must be determined, first, whether the instrument, wherein the covenant is found, operated as a lease of lands; second, whether the person charged has become a party to that lease, by assignment or otherwise, in the place of the party who made the covenant; and third, whether the covenant itself related to or concerned the demise of the premises. A failure to make out any one of these three requisites is a failure to make out the liability of the person charged.

It is not enough that the covenant is incorporated in the same contract. It must constitute a part of the contract of demise. For example, should the lessee covenant to build a

house on the premises, not as a part of the rent, but for an independent consideration, the covenant would not run with the land so as to bind his assignee.

Thus, in the case of The Mayor of Congleton v. Pattison, 10 East. 130, the lessee covenanted that he would not hire laborers for the premises from other parishes without a parish certificate, and it was decided that the assignee was not bound by the covenant.

We have submitted thus much, in a general manner, in regard to the origin and peculiarities of the rule of law under examination, not so especially to show its application to the .. class of contracts called grants or leases-for that is conceded as to prepare the way to show that that rule does not apply to either of the other general classes of contracts in regard to lands, which we have distinguished as contracts merely executory, and contracts of assignment.

4. The rule does not apply to deeds of assignment, or to contracts merely executory.

In connection with this branch of the subject, there are some things of a general character, to be borne in mind, which are entitled to consideration.

1st. The rule of law, which makes covenants run with the land as a burden, is peculiarly a rule of the feudal or common law, and is as old as the common law itself.

2d. Assignments by deed and devise were not introduced until after this rule of the common law had been in operation for a long time. Feoffments or leases are centuries older than assignments; and the transfer of estates by devise was still further postponed.

3d. Transfers by assignment and devise were in their day great strides in the way of progress; and, consequently, of encroachment upon the feudal disposition and arrangement of individual rights in land. They were probably regarded by the dominant class as disturbing, and, therefore, dangerous innovations upon the established order of things. To secure to tenants of estates in fee, in England, the unrestricted right of alienation, was a matter of contest continuing

« PreviousContinue »