Demarest v. Willard

A lessor may for rent, withsion, or the revtog^ae^rent and covenant for rent; and in the former case, the assignee may sue in his own name for rent accruing subsequent to the assignment; and the lessor may sue in his own name on the other covenants in the lease. A lessor for a term, with covenant by the lessee to pay rent, and covenants against certain injuries to the premises, and to surrender them in good repair at the end of the term, made an indorsement on his lease assigning the rent, and “ within lease.” Held, that no interest in the reversion passed beyond the term; and the right of action not accruing on the oovenants as to injuries and repairs, till the term had expired, and the reversion then being in the lessor, the right of action was in him; but the right of action for rent which became due and in arrear after the assignment, was in the assignee. The statute (1 R. L. 363,) respects the assignment of the reversion; not the rent without the reversion. Rent arrear is a chose in action, and is, therefore, not assignable so as to give an action in the name of the assignee. But rent yet to grow due is assignable; and a covenant to pay it runs with the land, and may pass to an assignee, who may sue upon it in his own name A covenant to repair runs with the land.

COVENANT on ajease, tried at the Saratoga circuit, ISTo28th, 1826, bbfore Walworth, C. Judge, ^ tria] the following matters were in evidence: the plaintiff by lease under seal, dated March 29th, 1819, demised a house and lot to the defendant’s testator, for two years from the 1st of May, then next, at an annual rent of 600 dollars payable quarterly. The lessee covenanted to pay the rent, and that no alterations, &c,, should be made in the house, or any nails or wooden pins driven into the floors, walls or ceilings, or any damage done, during the term; and that he would deliver up the premises in the same repair at the end of the term, as at the date of the lease, all reasonable wear excepted. The plaintiff claimed for rent arrear, $50 14; for injury to the house by nails, pins, &e.; and that the premises were not delivered up in good repair. Considerable damage was proved. The defence was an assignment indorsed on the lease, dated April 29th, 1819, by the lessor to one Haswell, as follows; “ For value received, I do hereby assign, transfer and set over unto John Haswell, of, &c., his heirs and assigns, the within lease, and all the rents wkich may and shall from time to time become due and payable during the term,” &c., with an authority to Haswell to collect the rents, and a covenant to ratify and confirm what he might do in the premises. «The judge decided that this assignment was a bar to the plaintiff’s recovery upon both branches of his claim. The plaintiff then proved a re-assignment from Haswell to the plaintiff, dated August 15th, 1821, thus: “ The balance of rent and interest thereon due this day, is $36 48s in consideration of which, I do hereby re-assign to Samuel Demarest, (the plaintiff,) all my right and interest of, in and to the within lease, and all the rent due and to become due thereon.” The judge decided that this did not revest a right of action: and non-suited the plaintiff, who excepted. moved to set aside the non-suit. He said the assignment passed no interest in the reversion ; but only in the rent. The reversion remaining in the plaintiff, to the time of covenant broken, he always had the sole right to an action for any injury to the inheritance. The covenant is said to run with the land; and remains with the interest in the land. Suppose the lessee had been ousted, was Haswell liable? But whatever in* terest passed to him was revested in the plaintiff by the reassignment ; and the privity of contract, between the original parties, still subsisting, the, right of action was perfect in the plaintiff. At any rate, the interest of the assignee being at an end before the covenant was broken, he could have no right of action in respect to that. The statute, (1 B. L. 363,) relative to assignees of lessors or lessees, applies only to-the assignees of reversions, and such covenants as at common law run with the land. But if this case comes within the statute, the remedy given by its being cumulative, the right to bring an action in the name of the lessor, remained as at common law, though it may have been for the benefit of the assignee. If this be not so, then we ask the benefit of the rule set up against us. If the assignment carried all rights, the re-assignment brought them back. If the statute applies to the assignee, it equally reaches the assignee of an assignee, in which character the plaintiff stands. He cited 5 Cowen, 165, 188; 3 T. R. 393 ; Bac. Abr. Covenant, *(E.) s. 6; Jac. Law Dict. Covenant, III; Chit. Pl. 111; 16 John. 159. The legal right of action for breach of all the covenants, passed to Haswell, by the assignment. The full operative words were used, “ assign, transfer, and set over.” (4 Cruise’s Dig. 112.) The covenants on which the action proceeds, all run with the land, and the right of action of course follows. (4 B. & A. 468 ; 3 Wils. 29; 3 Bl. Com. 385; Com. Dig. Debt, (c), 4 Mod. 81; 3 M. & S. 382; 1 R. L. 363; 14 John. 93.) But whatever be the construction of this assignment, as to the covenants to keep in repair, it is clear the rent passed. That may be assigned without the reversion, especially since the statute, (1 R. L. 363.) (5 Jac. Law Dict. Remainder, p. 527; Com. Dig. Covenant, (B. 3,) Debt, (C.,) Grant, (C.,) Assignment, (A.) Cro. Eliz. 637, 651; 3 Salk. 118; 1 Ld. Raym. 82 ; 3 id. 88; T. Baym. 11; 1 Lev. 22.) It will be found that the reversion also passed under the statute. Beversion does not necessarily mean all the interest of the lessor. It may be that part of his interest which is co-extensive with the term. (5 Jac. L. Dict. Reversion, p. 526 ; 4 Cruis. Dig. 111; Co. Lit. 215, a.) The counsel stated the case of Litilewood v. Jaclcson, decided by this court in 1820, which will be found noticed at large in the opinion of the court; and relied upon it as one in point for the defendant. As to what covenants run with the land, he cited Com. Dig. Covenant, (B. 3;) Cro. Eliz. 599. The re-assignment can have no greater effect, being to the lessor, than if it had been an assignment to a third person. It would make an assignee; but the plaintiff does not claim in that character. He sues as lessor. Beside, all the breaches happened before the re-assignment. The claim upon the covenants were thus turned into choses in action, and could not pass by assignment. (Jac. Law Diet. Assignment. Oro. Eliz. 863.) Viele, in reply, did not deny that a part of that lessor’s reversion might be assigned; but insisted that here was *no intention manifested by the assignment, to pass' any part of it. It is a mere assignment of the rent, which, indeed, not being separable from the reversion, no more than an equitable interest passed; and the action must be in the lessor’s name. But if these covenants all passed, it follows that they were re-assigned. It is no answer to say they were broken. They are confessedly covenants of a nature which run with the land. Such never become choses in action; or if they do, they are expressly made assignable by the statute. That reaches all covenants between lessor and lessee whether broken or not, whether they run with the land or are collateral.