Sidor som bilder
PDF
ePub
[ocr errors][ocr errors]

ing the poor's rate upon them ; but it cannot affect them even collaterally, in respect of the demised premises during the term.”

And Bayley, J., said: “I agree that it is not material to consider how soon the act done, which was covenanted not to be done, may affect the land ; but, in order to bind the assignee, the covenant must either affect the land itself during the term, such as those which regard the mode of occupation; or it must be such as per se, and not merely from collateral circumstances, affects the value of the land at the end of the term.” (The Mayor of Coughton v. Pattison, 10 East's R. 130.)

A covenant to supply the demised premises with good water during the term runs with the land, for it is a covenant which respects the premises demised, and the manner of enjoyment. On failure of the lessee to perform this covenant, therefore, the lessor, or his assignee, may bring ejectment, and recover the possession of the land demised. (Jourdan v. Wilson, 4 Barn. & Ald. R. 266.) So also a covenant to insure against fire, premises situated within the weekly bills of mortality, mentioned in a statute, one section of which enables the landlord, by application to the directors of the insurance office, to have the sum insured laid out in rebuilding the premises, is a covenant that runs with the land, for the reason that this may be regarded as a covenant to lay ont a given sum of money in rebuilding or repairing premises in case of damage by fire. And Best, J., was of the opinion that if the premises had not been within the limits of the act, it would not have varied the case, because the original covenantee could not avail himself of the covenant, inasmuch as, after the assignment, he sustains no loss by the destruction of the buildings; and 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;" and he defines collateral covenants to be such covenants as are beneficial to the lessor, without regard to his continuing the owner of the estate; but the judgments of the other judges seem to have proceeded entirely on the ground of the locality of the premises. (Vernon v. Smith, 5 Barn. & Ald. R. 1.)

When one seised of a mill and certain lands granted a lease of the latter, for years, the lessee yielding and paying to the lessor, his heirs and assigns, certain rents, and doing suit to the mill of the lessor, his heirs and assigns, by grinding all such corn there as

[ocr errors]
[ocr errors]

should grow upon the demised premises; this reservation of the suit to the mill was held to be in the nature of a rent, and the implied covenant to render it, resulting from the reddendum, was decided to be a covenant that runs with the land, so long as the ownership of the mill and the demised premises belong to the same person. (Vivyan v. Arthur, 1 Barn. & Cres. R. 410.) But a condition that a lessee shall not assign over his term, without license from the lessor, is held to be a collateral condition; and cannot be taken advantage of by the assignee of the lessor. (Lucas v. Horo, Sir T. Raym. R. 250. Collins v. Silley, 1 Stiles' R. 265. Pennant's Case, 3 Coke's R. 64.)

The assignee of part of the reversion in all the lands demised is held to be an assignee within the English statute, but the assignee of the reversion in part of the lands is not; for the condition being entire, cannot be apportioned by the act of the parties, but shall be destroyed. If, therefore, A be lessee for years of three acres, with condition of re-entry, and the reversion of all the

, three acres are granted to B, for life, or for years, B can take advantage of the breach of condition. But it seems that if a reversion of any nature whatsoever, even in fee, of two acres only, be granted to B, he cannot avail himself of the breach of the condition, and bring ejectment. (Co. Litt. 215, a.)

A cestui que use and bargainer of the reversion are held to be within the statute, because they are assignees by act of the party; but it seems that the rule does not extend to persons coming in by act of the law, as the lord by escheat; nor to an assignee by estoppel only; nor to one who is in of another's estate; and, therefore, if the reversion expectant on the determination of the term be merged in the reversion in fee, the reversion is no longer within the statute. (Awder v. Nokes, 1 Moor's R. 419. Threr v. Barton, Ib. 94. Chaworth v. Phillips, Ib. 876. Webb v. Russell, 3 Term R. 393, 401.)

It is held that the English statute does not extend to gifts in tail; but it has been decided that copyhold lands are within its provisions. (Glover v. Cope, Carthew's R. 205.)

By the statutes of the state of New York, it is provided that the grantees of any demised lands, tenements, rents or other hereditaments, or of the reversion thereof, the assignees of the lessor of any demise, and the heirs and personal representatives of the lessor, grantee or assignee, shall have the same remedies by entry, action,

[ocr errors]
[merged small][ocr errors][ocr errors][ocr errors]

distress or otherwise, for the non-performance of any agreement contained in the lease so assigned, or for the recovery of any rent, or for the doing of any waste or other cause of forfeiture, as their grantor or lessor had, or might have had if such reversion had remained in such lessor or grantor. (1 Stat. at Large, 698, $ 23.)

In a case of covenant arising under the New York statute, Bronson, J., said: “Between lessor and lessee there is privity, both of estate and contract. The same relation also exists between the lessee and the assignee of the reversion; and the latter may sue in his own name upon all such covenants of the lessee, whether in law or in deed, as run with the land. As to implied covenants, his right to sue stands on the privity of estate, and was complete at common law. He might bring debt for the rent reserved by the lease, the rent being incident to the reversion. But as to express covenants and conditions contained in the lease, the right of the assignee to sue in his own name was given by the statute 32 Henry VIII, ch. 34, which we have re-enacted (2 R. S. 747, SS 23, 24), and which transfers the privity of contract, so that the assignee stands in the same plight, in relation to the tenant, that the lessor did before he parted with the reversion." (Willard v. Tallman, 2 Hill's R. 274, 276.) It will be noted that the statute of 32 Henry VIII, ch. 34, is the English statute hereinbefore given, so that the decisions of the English courts under that statute may be applicable to the statute of New York.

It has been held, that where premises demised or granted, reserving rent, with a clause of re-entry, are held in separate parcels by different persons, under the lessee or grantee, the landlord may re-enter upon and bring ejectment for any separate parcel of the premises, against the party holding such parcel. The assignee of the lessor or grantor, in a case arising since the statute, would, of course, have the same right of action as the original lessor or grantor would have had but for the ejectment. (Van Rensselaer v. Jewett, 5 Denio's R. 121.) As somewhat pertinent to this position, it may be said that the late court of chancery of the state of New York held, that where a covenant running with the land is divisible in its nature, if the entire interest in different parcels of the land passes by assignment to separate individuals, the covenant will attach upon each parcel pro tanto; and that the assignee of each part will be answerable for his proportion of any charge upon the land which was a common burden upon the whole, and will

be exclusively liable for the breach of any covenant which related to that part alone. (Astor v. Miller, 2 Paige's Ch. R. 68.)

It has been declared, in a case in the New York court of appeals, that a right of re-entry for non-payment of rent, or non-performance of any other condition, is not a reversion or possibility of reversion. It is not an estate in the land, but a right of action, and if enforced, the person entering would be in by a forfeiture of condition, and not by reverter. It was held, therefore, that when lands are leased in fee, whatever conditions the lease may contain, the lessor has no reversion or possibility of reversion, and cannot impose restraints upon the power of alienation by the lessee. (De Peyster v. Michael, 6 N. Y. R. 467.)

And in a still later case, the same court held, that where, by a conveyance to a railroad corporation, land was granted upon the condition that it should construct its road thereon within a limited

a time, was a condition subsequent, and that the title to land vested in the corporation, on the execution of the deed. That a mere failure to perform such a condition does not divest the title. There must be an entry, or what is equivalent thereto by the statute, by the grantor or his heirs, for a breach of the condition, to forfeit the estate; and accordingly, when the grantor of premises on condition subsequent, afterward conveyed the same to a third person, and there was subsequently a breach, the court held that the latter could not divest the title of the grantee on condition. (Nicoll v. The New York and Erie Railroad Company, 12

a

N. Y. R. 121.)

CHAPTER X.

THE NATURE OF THE TITLE OF THE CLAIMANT IN AN ACTION OF EJECT

MENT THE RULE IN PARTICULAR CASES.

however,

The word " title,” as used in this chapter, will have the same signification as in the chapter previous. The cases considered,

are those of less frequent occurrence, or those involving principles and rules peculiar to themselves; and may, therefore, be regarded as particular.

[ocr errors][ocr errors]

I. In respect to a corporation aggregate or sole, it was formerly doubted whether an ejectment could be maintained by the king, because an ejectment is for an injury done to the possession, and the king cannot be put out of possession. But this reasoning only applies to a case where the king is made plaintiff, and not where he is the lessor of the plaintiff'; for it is the lessee, and not the lessor, who by the legal fiction is supposed to be ousted ; and it is held, that where the possession is not actually in the king, but in lease to another, then, if a stranger enter on the lessee, he gains possession without taking the reversion out of the crown, and may

, have his ejectment to recover the possession, if he be afterward ousted ; because there is a possession in pais, and not in the king, and that possession is not privileged by prerogative. Hence it follows, that the king's lessee may likewise have an ejectment to punish the trespasser, and to recover the possession which was taken from him. (Payne's Case, 2 Leon. R. 205. Lee v. Norris, Cro. Eliz. 331.)

In cases included within the provisions of the statutes 8 Henry VI, ch. 16, and 18 Henry VI, ch. 6, which prohibit the granting to farm of lands seised into the king's hands, upon inquest before escheators, until such inquest be returned in the chancery or exchequer, and for a month afterward, if the king's title in the same be not found of record, unless to the party grieved who shall have tendered his traverse to such inquest; and avoid all grants made contrary thereto; the king cannot maintain ejectment for lands escheated upon the death of the tenant last seised, withont þeirs, when no immediate tenure of the crown was found by the inquest. Neither can the crown in such a case grant such lands to a stranger without office, and therefore the claimant in ejectment in such case cannot recover upon the demise of the crown. And it seems to be a question, whether, at common law, upon the death of the tenant last seised of the land, without heirs, the right and possession must be presumed to be immediately in the crown without office, as though the person last seised were the king's immediate tenant; the king's title not appearing by any matter of record, and the possession not having been vacant from the death of the tenant last seised. But the cases which seein to sanction grants from the crown, where there has been no office, are at least consistent with the notion, that an office is essential to make the grant valid in the case of an escheat where no tenure of the crown

a

« FöregåendeFortsätt »