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Evidence on Defence of Assignment over of Term by Defendant. 643

Evidence on defence of assignment over of term by defendant.] In an action against the assignee of a term on a covenant in the lease, he may plead that he assigned over the term before breach; for the assignee is only liable for those breaches which have occurred while he is assignee; Taylor v. Shum, 1 B. & P. 21; Paul v. Nurse, 8 B. & C. 486; but for those breaches he may be sued even after he has parted with the term. Harley v. King, 2 C. M. & R. 18. The assignee is not liable for breaches committed before the assignment to him. S. Saviour's v. Smith, 3 Burr. 1271; and see Coward v. Gregory, L. R., 2 C. P. 153. If the defence be traversed, the defendant must prove the assignment: that is, that the whole term has been legally transferred by him to another. The 8 & 9 Vict. c. 106, s. 3, requires that an assignment should be proved by an instrument under seal. But as an underlease by the defendant for the whole of his term amounts to an assignment; Parmenter v. Webber, 8 Taunt. 593; Beardman v. Wilson, L. R., 4 C. P. 57; and the above section allows leases not exceeding three years to be by parol, it follows that a good assignment of such a lease may be made by way of underlease, without deed or writing. Where the defendant proved that, although he had executed the assignment, it had not been delivered to his assignee, having remained in the hands of the defendant's solicitor, who had prepared it for, and by order of, the assignee, and who had a lien upon it, it was held sufficient. Odell v. Wake, 3 Camp. 394. It would be otherwise if delivered as an escrow, or rejected by the assignee. The defendant need not prove notice to the plaintiff of the assignment; Pitcher v. Tovey, 1 Salk. 81; 4 Mod. 71; nor the assent of the assignee to the assignment, for assent is presumed. Leach v. Thompson, 1 Show. 296; Freem. 2nd ed. 503, (b); see Siggers v. Evans, 5 E. & B. 367; 24 L. J., Q. B. 305; and Hobson v. Thelluson, L. R., 2 Q. B. 642. But his express refusal may, of course, be shown; and perhaps his incapacity to accept from infancy or some other cause. A reply that the assignment was fraudulent will not be supported by proof that the assignment was to a beggar in order to get rid of liability. Lekeux v. Nash, 2 Str. 1221; Taylor v. Shum, supra; Onslow v. Corrie, 2 Madd. 330. But if there was real fraud, as a secret trust for the benefit of the assignor it would probably defeat the defence, if such fraud were replied. See S. C.; Hyam's case, 1 D. F. & J. 75; 29 L. J., Ch. 243; Ex parte Bunn, 2 D. F. & J. 297; 31 L. J., Ch. 4; and Ex parte Bugg, 2 Dr. & Sm. 452; 35 L. J., Ch. 43.

An assignee who takes the demised premises from the lessee by indenture indorsed on the lease, "subject to the payment of the rent and the performance of the covenants and agreements reserved and contained in the lease," is not liable in covenant to the lessee for rent which the lessee has been called on by the lessor to pay after the assignee has assigned over. Wolveridge v. Stewart, 1 Cr. & M. 644, Ex. Ch.

Where the

Evidence on defence traversing assignment to plaintiff.]
plaintiff sues as assignee of the reversion, and the defendant traverses the
title as stated, it will be incumbent upon the plaintiff to prove it, by show-
ing the mesne conveyances from the original lessor. See Carvick v. Blagrave,
1 B. & B. 531.

Where a lease, made by cestui que trust under a power in a settlement,
with covenants for rent, &c., with the lessor and "his assigns," recited the
equitable estate of the lessor, it was held that "assigns" meant assigns of
the settlor, and that the assignee of the legal reversion, though not assignee
of the lessor, was entitled to take advantage of the covenants and condition
of re-entry; Greenaway v. Hart, 14 C. B. 340; 23 L. J., C. P. 115; and
that the lessee was not estopped from disputing the lessor's title to sue.
Ib. The question who are assignees of the reversion, so as to be entitled

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to sue by virtue of the 32 Henry 8, c. 34, is usually decided upon the pleading.

The assignee of the reversion cannot sue for breaches of covenant which accrued before the assignment to him. Martyn v. Williams, 1 H. & N. 817; 26 L. J., Ex. 117. And although 1 Vict. c. 26, s. 3, enacts that a right of entry for condition broken shall pass by will, yet this does not extend to an action on a covenant broken in the testator's lifetime.

Evidence under defence of surrender.] A surrender of a lease, such as could not be created without writing, must be by deed, 8 & 9 Viet. e. 106, s. 3, unless the surrender be by act and operation of law. The mere destruction of the sealed lease by consent of both parties was, at law, no surrender of the lease by operation of law; and debt lies for rent notwithstanding, for the estate is not divested. Ward, Ld. v. Lumley, 5 H. & N. 87; 29 L. J., Ex. 322.

As to what amounts to a surrender by act and operation of law, see ante, pp. 306, 307, and Furnivall v. Grove, 8 C. B., N. S. 456; 30 L. J., C. P. 3.

Evidence under defence of eviction.] An action of covenant for nonpayment of rent can be defeated by proof of an eviction of the defendant from the premises in question, either by the lessor or one whose title is better than his. Vide ante, pp. 310, 311, where the cases as to what amounts to an eviction and the effect thereof are collected.

Where there has been an eviction, by title paramount, from part of the land demised, the lessor may sue the assignee of the lease in covenant for the apportioned part of the rent, because the action is brought on the privity of estate. Stevenson v. Lambard, 2 East, 575. But the court intimated that, in an action of covenant brought by the lessor against his lessee it would have been otherwise, as that action is founded on the privity of contract, citing Bro. Contract, pl. 16; Moor, 116. An eviction from part of the subject-matter of the lease was held to be no defence to an action for breaches of covenants to repair, and not to assign or underlet, it not appearing that the defendant had given up possession of the whole. Hodgskin v. Queenborough, Willes, 131, n. (b); Newton v. Allin, 1 Q. B. 518. And it would seem that the tenant, in such a case, cannot discharge himself from his liability to such covenants, by surrendering the residue of the premises, from which he has not been ousted to the landlord, if the latter refuse to accept possession of them. Morrison v. Chadwick, 7 C. B.

266.

Evidence on defence of bankruptcy of the plaintiff.] In an action of covenant for rent the defendant pleaded that the plaintiff became bankrupt after the rent was due. The plaintiff replied that he let the premises in question as trustee for a third person, and had no beneficial interest in the rent. It was held sufficient, under this replication, to show that the plaintiff had from time to time been in the habit of paying over the rent to the person who was stated to have the beneficial interest in the premises, and that there was no need of proving an express declaration of trust under the Statute of Frauds. Houghton v. Kanig, 18 C. B. 235; 25 L. J.,

C. P. 218.

Evidence where defendant is sued as assignee of the lessee.] Where an issue is taken upon the assignment it will be necessary to prove, either a transfer of the interest by deed, or facts from which an assignment may by law be inferred. Where the statement of claim states generally that the term has

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Action against Assignee of Lease.-Defence.

645 vested in the defendant by assignment, it will be sufficient prima facie evidence to show that the defendant has paid rent as assignee, or is in possession of the premises. 2 Phill. Ev. 125; Peake, Ev., 5th ed., 284. Thus, where A. had been tenant of certain premises, and upon his leaving them, B. had taken possession, it was held that he might be presumed to come in as assignee of A., though he had never paid rent. Doe d. Morris v. Williams, 6 B. & C. 41. The jury may, however, decline to act upon such evidence, and find that there was no assignment in writing. Paull v. Simpson, 9 Q. B. 365. When the defendant has never entered or done anything to admit the assignment, his title may be proved by producing memorials of the mesne conveyances registered by parties under whom the defendant claims, after notice to the defendant to produce the originals. Wollaston v. Hakewill, 3 M. & Gr. 297. In this case it was decided that an executor who had not entered was liable as assignee, unless he discharged himself by pleading that he was no otherwise assignee than as executor, and that he had never entered into possession. Proof that the defendant is executor de son tort appears sufficient to impose upon him the liability of assignee. Paull v. Simpson, supra. But one who has occupied premises under an executor de son tort, without any legal assignment of the lease, would seem to be free from such liability, except perhaps where the substitution in the tenancy could be proved to be fraudulent. S. C. Where a person has entered into possession of, or received the rents and profits of, premises demised to an intestate, and paid the rent reserved thereon, he is estopped from denying that he is assignee of the term, even though he is not chargeable as executor de son tort. Williams v. Heales, L. R., 9 C. P. 177. Where a term has been assigned by way of mortgage it is not necessary, in an action on a covenant charging the mortgagee as assignee, to prove that he has entered upon the mortgaged premises. Williams v. Bosanquet, 1 B. & B. 238. A trustee to whom a debtor's estate, including a lease, has been assigned for the benefit of creditors is liable as assignee if he do not repudiate the lease; see White v. Hunt, L. R., 6 Ex. 32, where the tenancy was from year to year.

Action against assignee of lease. Defence.] In answer to this action the defendant may prove that he is not an assignee of the whole term, but only an undertenant. Holford v. Hatch, 1 Doug. 183; Derby, El. of v. Taylor, 1 East, 502. If he is charged as assignee of all the estate in certain premises, and he is in fact an assignee of an undivided part of the premises only, he cannot plead this in bar to the action; Merceron v. Dowson, 5 B. & C. 479; as it amounted to a plea in abatement only; Grattan v. Wall, I. R., 2 C. L. 484. By Rules, 1883, O. xxi., r. 20, “no defence shall be pleaded in abatement." As to the manner in which an objection, formerly pleaded in abatement, is now to be taken, vide ante, p. 87. The defendant is not chargeable as assignee of the land for the entire rent, if the assignment be of part only. Curtis v. Spitty, 1 N. C. 756. The defendant may show that he is only devisee of the equity of redemption, the legal estate being in the mortgagee; Carlisle, Mayor of, v. Blamire, 8 East, 487; or only appointee, and not liable as such on a covenant binding the assigns of the appointor. Roach v. Wadham, 6 East, 289.

Formerly many questions arose as to the effect of a lessee's bankruptcy on the covenants entered into by him in his lease; and much difficulty arose under the earlier bankruptcy acts as to whether the assignee had or had not accepted the lease so as to be liable on the covenants thereof. These ques

tions do not, however, arise under the Bankruptcy Act, 1883, which is now in force. Vide ante, pp. 307, 308.

As to what covenants run with the land, so as to bind the assignees, see Spencer's case, 1 Smith's L. Cas. and notes.

Action for rent under indenture of demise.] The action may be in the form of debt for the rent reserved by the lease, or of covenant on the covenant to pay. In the former case, the cause of action does not in strictness fall in this place; but, for convenience, debt and covenant for rent are here treated of together. See also Action for use and occupation, ante, p. 303, under which title some of the proofs applicable to issues, which occur in this action, will be found.

An action lies by the lessor, or the grantee of his reversion against the lessee, on his express covenant to pay rent, notwithstanding he have assigned the lease, and the lessor, or his grantee have accepted the assignee as his tenant. 1 Wms. Saund. 240; 2 Id. 302, (5). But the lessor cannot, after he has parted with his reversion, bring an action of covenant for rent which accrued due after the grant of the reversion, the action can only be brought by the grantee of the reversion, for the stat. 32 Hen. 8, c. 34, has transferred the privity of contract together with the estate in the land to him. 1 Wins. Saund. 241 f, (6). But where the lessor has assigned his reversion, in a part only of the land, the lessee is liable to him on the covenant, for an apportioned rent, in respect of the residue of the land, although the lessee had assigned all his interest in the whole of the land. Swansea, Mayor, de. of, v. Thomas, 10 Q. B. D. 48. The lessor may bring an action of debt against the assignee of the lessee by reason of the privity of estate; but debt will not lie against the original lessee, after the acceptance of the assignee by the lessor as his tenant, for this extinguishes the privity of contract which was created between them by the lease. 1 Wms. Saund. 241 b, (5); 2 Id. 302, (5); Wadham v. Marlowe, 8 East, 314, n; 1 H. Bl. 437.

In an action of debt for rent, the statement of claim states a demise at a certain rent, the entry or holding of the defendant, and the accruing of rent during a certain period. Sometimes the lease by indenture is set out, but it is not then the gist of the action; but it is of course a material part the claim where the action is in covenant.

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Under the J. Act, 1873, s. 25, (5), (ante, p. 281,) a mortgagor may sue for the rent of land mortgaged, which he is allowed by the mortgagee to enjoy.

Action for rent. Evidence on denial of the demise, &c.] When the lease is in the pleadings stated to be under seal, the contract is denied, and may be disproved under a defence denying the demise, or the execution of the deed. Where the demise is denied, it may be proved by production and proof of a lease, executed by the plaintiff and accepted by the defendant, or by proof of the execution of it by the defendant, just as if the plaintiff had sued on the deed, and the defendant had denied execution; see 1 Wms. Saund. 276, (11); and post, Action for recovery of land by landlord, and Action of replerin, -Tenancy of the plaintiff. Where it was alleged that the plaintiff had demised to the defendant three rooms, and it appeared in evidence that the demise was of three rooms and the use of the furniture, it was held to be rightly stated according to the legal effect; for the rent could not issue out of the chattels. Walsh v. Pemberton, 1 Selw. N.P., 2nd ed. 640; Farewell v. Dickenson, 6 B. & C. 251. But if the demise is of a messuage and tithes, or of a messuage and of a licence to sport, reserving an entire rent, and is not under seal, an action cannot be maintained for the rent reserved if the defendant have entered only; for the incorporeal right cannot pass except by deed; Gardiner v. Williamson, 2 B. & Ad. 336; Bird v. Higginson, 6 Ad. & E. 824; but if the tenant have enjoyed the right for the term, he must then pay the rent agreed on. See Thomas v. Fredricks, 10 Q. B. 775 ; Adams v. Clutterbuck, 10 Q. B. D. 403.

Action for rent. Defence. Payment.] As to proof of payment, vide ante, pp. 312 and 615, et seq. The defendant may show payment to the plaintiff, or to another by his appointment; Taylor v. Beal, Cro. Eliz. 222; Gilb. Ev.

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647

Action for Rent.--Breach of Covenant not to Assign, &c. 283; or, that the plaintiff has agreed that a debt due by him to the defendant shall go in satisfaction of the rent; Gilb. on Debt, 443; but not that the plaintiff was bound by covenant to repair the premises, and that he (the defendant) expended the rent in necessary reparations; for this is only a cause of cross action; Taylor v. Beal, Cro. Eliz. 222; B. N. P. 177; and would therefore now be matter for counter-claim. But if the lessor direct the lessee to repair, and the lessee repair accordingly, the money so laid out may be evidence of payment. Gilb. on Debt, 442.

A compulsory payment of a charge upon the land may be recouped by the defendant out of his rent. Dyer v. Bowley, 2 Bing. 94, and cases cited post, tit. Action of replevin,-Denial of rent being in arrear. But the defence would require to be pleaded specially.

As to deductions from rent for property tax paid, vide Action for use and occupation-Payment, ante, p. 312.

Action for rent. Defence. Readiness to pay on the land.] It is a good defence in an action of debt for rent, that the defendant was on the premises demised ready to pay the rent at the time it became due, but the plaintiff was not there to receive it. Crouch v. Fastolfe, T. Raym. 418; see also Tinckler v. Prentice, 4 Taunt. 549. It was held bad in an action against the lessee on an express covenant to pay the rent. Haldane v. Johnson, 8 Exch. 689; 22 L. J., Ex. 264. But the defence would seem to be good in an action against an assignee of the lease, on a covenant to pay the rent, for such action is founded solely on privity of estate, and would therefore fall within the principle of Crouch v. Fastolfe, supra; see per cur. 8 Exch. 694, 695; 22 L. J., Ex. 265.

Action for rent. Defence. Statute of Limitations.] It has been decided that, where the demise is by indenture, the action for rent is now limited, by 3 & 4 Will. 4, c. 42, s. 3, to 20 years, and not, by 3 & 4 Will. 4, c. 27, s. 42, to 6 years only. See these statutes and the cases decided thereon, ante, p. 638, et seq.

Action for rent. Defence. Fraud. It seems that fraud will not avoid a contract whereby an estate in land has passed to the defendant. Feret v. Hill, 15 C. B. 207; 23 L. J., C. P. 185. It is a good equitable defence that plaintiff had, to his knowledge, no title to part of the land he purported to demise. Mostyn v. W. Mostyn Coal & Iron Co., 1 C. P. D. 145.

Breach of covenant not to assign, &c.] On a covenant "not to assign, transfer, set over, or otherwise do or put away the indenture of demise, or the premises hereby demised, or any part thereof," it has been held that an underlease is no evidence of a breach, but that an assignment of the whole term must be proved. Crusoe d. Blencowe v. Bugby, 3 Wils. 234; see 1 Smith's Lead. Cas. 8th ed. 63. But, where the proviso was "not to set, let, or assign over the demised premises, or any part thereof," an underlease was considered to be within the terms of the proviso. Roe d. Gregson v. Harrison, 2 T. R. 425; and, where a lease contained a proviso for re-entry in case the lessee "should demise, lease, grant, or let the premises, or any part thereof, or convey, alien, assign, or set over the indenture, or his estate therein, or any part thereof, for all or any part of the term;" it was held, that proof that the lessee had entered into partnership with A., and agreed that he should have the use of a back-room and other parts of the premises exclusively, was evidence of a forfeiture. Roe d. Dingley v. Sales, 1 M. & S. 297. An assignment by an assignee of a lease to his co-assignee is a breach of a covenant not to assign. Varley v. Coppard, L. R., 7 C. P. 505. But see hereon Bristol, Cor. of v. Westcott, 12 Ch. D. 461, 465, per M. R. Where a lease is granted to partners, B. & H., it is no breach of a covenant, not "to

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