Worthington v. Cooke

Grason, J.,

delivered the opinion of the Court.

This is an action brought in covenant by the appellant, against the appellee, her lessee. The sixth plea, which' goes to "the whole narr., alleges that prior to the alleged claims of the plaintiff, the defendant conveyed all her interest in the leasehold premises to one Emory G. Lee, in whose name the plaintiff thereafter rendered her-bills for rent, and that afterwards and before any of the supposed breaches of covenant by the defendant, the plaintiff and Emory G. Lee jointly conveyed part of the premises covered by the lease, to wit, ab&ut twenty acres thereof, to one Catharine S. Yeara in fee, in consideration of the sum of twenty-five hundred dollars paid to the plaintiff, by reason whereof the defendant was not liable for any of the supposed breaches of covenant, in manner *53 and form as alleged. To this plea there was a demurrer, and judgment was rendered for the defendant on the demurrer, and from that judgment this appeal was taken.

It is claimed hy the appellant and not denied hy the appellee that a covenant to pay rent, which runs with the land, binds the lessee during the whole term, notwithstanding there has been an assignment of the term hy the lessee and an acceptance of the rent hy the lessor from the assignee. In view of the uniformity of the decisions upon this point, the proposition could not he well disputed. It was contended on the part of the appellee, that, in view of the facts in this case, the appellant cannot, in any event, recover the whole of the rent declared for, and this is conceded hy the appellant. But it is further contended by the appellee, that, in a case of this description, the rent is not apportionahle, and, consequently, that no part of the rent can be recovered. This contention is based upon the case of Stevenson vs. Lambard, 2 East, 578, in which it is claimed that Lord Ellenborougii held that “ in covenant as between lessor and lessee, where the action is personal, and upon a mere privity of contract, and on that account transitory as any other personal contract is, the rent is not apportionahle.” We have examined with care that decision and find that the case before him was an action of covenant hy the lessor against the assignee of the lessee for non-payment of rent, and therefore the question whether in an action of covenant hy the lessor against the lessee the rent was apportionahle, was not involved in the case. But he this as it may, Lord Ellenborough’s views, as expressed in that case, have not been followed in the later decisions, hut they have held, with great unanimity, that in such cases the rent is apportionahle, so that now there seems to be little or no doubt upon the question. See Platt on Cov., 240; 2 Cruise’s Dig., 211; Platt on Leases, 132, and authorities there cited; 3 Kent’s Com., 469; Coke Litt., 539; Taylor’s Landlord *54 & Tenant, 364; Smith’s Landlord & Tenant, 296, 297; Bliss vs. Collins, 5 B. & Ald., 876; Reed vs. Ward., 22 Pa.,. 144; Ingersoll vs. Sergeant, 1 Whart., 338 ; Twynam vs. Pickard, 2 B. & Ald., 105; 1 Jac. & Walker, 181; Crosby vs. Loop, et al., 13 Ill., 626 . Where the rent is apportionable, an action by the lessor for his portion of the rent need not be limited to that part, but he may sue for the whole and recover as much as the jury may find that he is entitled to, and he will be barred as to the residue. Taylor’s Land, and Ten., sec. 383; Platt on Leases, 146; Bliss vs. Collins, 5 B. & Ald., 876; Van Rensselaer’s Ex’r vs. Gallup, 5 Denio, 454 . There seems therefore to be no. doubt that, where the lessor grants part of the reversion, the rent is apportionable, and further, that the lessor-may sue in covenant for the whole rent and recover the part to. which he is entitled, and this being so, the sixth plea of' the defendant was demurrable in point of law, and the Court below erred in overruling the demurrer to it. The judgment appealed from will be reversed and th'ecause remanded.

(Decided 17th March, 1881.)

Judgment reversed, and cause remanded.