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the same at his own charge, whilst it was easy to be done; yet since the right was plain upon the deed, and the cleansing made chargeable by the building, it was reasonable the defendant should do it, and decreed accordingly.

Under

34. If, however, the tenant be not assignee of the Exception. whole term, he is then in fact only an under-tenant; tenants. and is not liable to an action for the breach of any of the covenants contained in the original lease.

Doug. 182.

35. An action of covenant was brought for rent in Holford v. Hatch, arrear, against the defendant, as assignee to one Saunders. On the trial it appeared that the defendant was in possession of the premises during the time when the rent in arrear became due; but that, by the deed under which he held, they were conveyed to him by Saunders for a day or two less than the original term. For the plaintiff it was contended that the covenant for rent, being one of those which runs with the land, every person who took under the original lease, was liable to it. To this purpose the defendant, although he had not strictly taken the whole of the lessee's interest, in point of duration, was to be considered as his assignee. A devisee, an executor, an assignee under the bankrupt laws, or one who purchased a term from the sheriff under an execution, were assignees in law, to the effect of being liable to covenants for rent, &c.; although the transfer to them did not amount to a forfeiture, under a covenant not to assign. The landlord was entitled to look for the rent to the person in possession, and ought not to be driven to the necessity of finding out the original lessee, and bringing his action against him.

On the other side it was insisted, that there was not a better known distinction in the law than that be

Palmer v.
Edwards,

tween an assignee and an undertenant. Only assignees of the whole term, whether by actual assign'ment, or by devise, sale under execution, &c., are liable to the covenants for rent, &c.; for if there was a reversion of a day reserved by the immediate lessor, there was no privity between the undertenant and the first lessor.

Lord Mansfield said, this was an action of covenant by a lessor against an underlessee; and the single question was, whether the action could be maintained against him, as being substantially an assignee. For some time the Court had great doubts; they had bestowed a great deal of consideration on the subject, and looked fully into the books; and it was clearly settled, and was agreeable to the text of Littleton, that the action could not be maintained, unless against an assignee of the whole term.

36. It was determined in a subsequent case, that where the whole of a term is assigned, and no reversion is left in the assignor, though the rent be reserved to the original lessee, and not to the lessor, the assignee will be entitled to the benefit of the covenants contained in the original lease.

37. An action of covenant was brought by the Doug. 186.n. plaintiff, as assignee of a term, against the defendant, as assignee of the lessor, for not providing proper timber for repairs. It was objected, that when the original lessee assigned over the term, the rent was reserved to such lessee, and not to the lessor; and that the covenants in the assignment made by the original lessee, were not the same with those in the original lease. On the other side it was contended, that wherever the whole interest is conveyed, it is an assignment; and that in such a case the assignee $tood exactly in the place of the lessee, and was en

titled to the benefit of all the covenants inserted on the part of the lessor.

The Court was of that opinon, and gave judgment accordingly.

is still liable.

38. Although assignees are liable to all the cove- The Assignor nants that run with the land; yet that circumstance will not discharge the assignors, who will still continue liable to them.

. Godscall,

Cro. Ja. 309.

39. An action of covenant was brought by the Barnard v. Jessor of a house, against the lessee, for not repairing it, after warning given. The defendant pleaded, that long before the warning, he had assigned over his term to J. S., from whom the plaintiff afterwards received rent. It was determined that the action against the lessee was maintainable, notwithstanding the assignment, and acceptance of rent.

the Heirs of

40. By the common law, covenants real descend to Descend to the heirs of the grantor, who may at any time bring the Grantors. an action upon them, though not named; as in the case of Lougher v. Williams: but no stranger could ante, ý 27. take advantage of a covenant of this kind; so that grantees of reversions could not enforce the performance of any covenants, contained in leases, made by

the person under whom they derived.

of Rever

ante, $31.

41. To remedy this the stat. 32 Hen. VIII. c. 34. And go to was made; which has been already stated. This the Grantees act extends to covenants as well as to conditions, it sions. being thereby enacted, that the grantees and assignees of reversions shall have such like and the same advantages, by action only, for not performing the covenants contained in the said leases, as the lessors or grantors themselves, or their heirs or successors might have had,

42. The general resolutions made on this statute c. 2. § 53. will be found in Title XIII. It will therefore be suffi

5 Rep. 18 a. cient to observe here, that this act extends only to covenants which concern the thing demised, and not to collateral covenants. For the intent of the statute was not to transfer any privity of contract, but to 1 Saund, 237. annex the covenants, concerning the land demised, to the reversion; so that they might pass as incident, and annexed to such reversion.

Thursby v. Plant,

Webb v. Russell,

3 Term Rep. 393.

I H. Black. 562.

43. In a modern case it was resolved by the Court of King's Bench, and affirmed in the Exchequer Chamber, that if a mortgagor and mortgagee make a lease, in which the covenants for the rent and repairs are only with the mortgagor and his assigns, the assignee of the mortgagor cannot maintain an action for the breach of these covenants; because they are collateral to his grantor's interest in the land; and therefore do not run with it. And Mr. Serjeant Shepherd, in arguing this case, stated that there were three relations at common law, which might exist between a lessor and lessee, and their respective assignees. First, privity First, privity of contract; which was created by the contract itself, and subsisted for ever between the lessor and lessee. Secondly, privity of estate; which subsisted between the lessee or his assignee, in possession of the estate, and the assignee of the reversioner. And thirdly, privity of contract and estate; which existed where both the term and reversion remained in the original covenantors. The statute 32 Hen. VIII. seemed to have created a fourth relation; a privity of contract in respect to the estate, as between the assignees of the reversion, and the lessees, or their assignees. The statute annexed or rather created a privity of contract between those who have privity of estate; and when the one fails, the other fails with it.

44. A covenant to settle lands of a certain value is General and Specific general, and does not bind any particular lands of Covenants. the covenantor. But a covenant to settle particular lands is a specific lien on those lands.

v. Dedire,

45. A person owed debts by bond and by simple Freemoult contract, and upon his marriage had covenanted to 1 P. Wms. settle his lands in Rumney Marsh, and also lands that 429. should be of the value of 60l. per annum, upon his wife for life. After which he made a will, thereby charging all his real and personal estate with the payment of his debts, and died.

On a bill brought by the creditors for the satisfaction of their several debts, Lord Parker said,-With regard to the lands in Rumney Marsh, the marriage articles being a specific lien on them, make the covenantor, as to them, but a trustee; and therefore, during the life of the wife, they are not to be affected by any of the bond debts. But the covenant for settling lands of the value of 60l. per annum on the wife, does not specifically bind any lands. Wherefore, as touching that, the wife must come in only as a specialty creditor.

nants for

46. In all ancient feoffments, the feoffor entered Usual Coveinto a general warranty for the title. But warranties Title. have been long disused, and a set of covenants for securing the title have been substituted in their stead; which are now generally inserted in all conveyances, as being in some respects more beneficial to the grantees, and affording a more easy remedy, in case of a defect in the title, than could be obtained under the ancient warranty.

Grantor is

47. By the first of these, the grantor covenants for That the himself, his heirs, executors, and administrators, with seised in Fee, the grantee, his heirs and assigns, that he the grantor is &c. lawfully seised in fee simple of the premises conveyed.

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