Of Changes by Bankruptcy.-The legal right that the landlord has to distrain the goods of his tenant for rent in arrear, is not affected by the tenant's bankruptcy while the goods remain on the premises. For a landlord is considered in a higher degree than a common creditor, and it would be hard to preclude him from distraining, where there are goods on the premises (a). The issuing a commission of bankrupt therefore against a tenant, and the messenger's possession of his goods, does not hinder the landlord from distraining for rent; but while upon the premises, they are still liable (a). Money paid for rent to a landlord who was about to distrain, by a trader after an act of bankruptcy committed, is not recoverable back by the assignees (b). The landlord may distrain the goods for his entire debt, even after assignment or sale by the assignees, if the goods be not removed: the reason is, because no provision is made in the case of bankruptcy by the statute (8 Ann. c. 14.) which gives the landlord a year's rent on executions (c). But it is a principle that a landlord has no lien in such case after the goods are removed from the premises (d). Therefore if the landlord neglect to distrain, and suffer the goods to be sold by the assignees and removed from off the premises, he can only come in on an average with the rest of the creditors (e). Also, if landlord prove his debt for rent under the commission and swear that he has no security, he thereby waives, it should seem, his right to distrain; and the vendee of such goods under the assignee will be entitled to the goods (a). So, a landlord who petitions to be paid the rent in arrear at the time of the commission being taken out, seven years after the effects had been sold by the assignees, was considered only as a common creditor, and compelled to come in pro rata, his demand being a stale one (e). A mortgagee who has paid the arrears of rent on a bankrupt's estate, unless he has an order of the Court of Chancery to stand in the landlord's place, shall not be preferred to the creditors under the commission (e). Where on goods being sold under a distress for rent, a balance remained in the hands of the constable, the tenant or his representative could only come in for his proportion with the other creditors: if any thing had remained in specie it might have been different, but in this case the money was embezzled. (a) Exparte Grove. 1. Atk. 105. Exparte Des (e) Anon. I Atk. 102. charmes. 1 Atk. 103. Bradyll v. Ball. I Bro. 427. I Assignees are not entitled to the benefit of a covenant for the renewal of a lease (a). The commissioners cannot assign a lease wherein a condition is contained, making the lease void on the tenant committing an act of bankruptcy whereon a commission shall issue: for such a proviso is legal, and the landlord may re-enter by virtue thereof (b). It has been determined, however, that the commissioners may assign a lease granted to a bankrupt, in which there is a proviso that the lessee, his executors, or administrators shall not assign without the lessor's consent in writing (c). An assignee of a bankrupt, a devisee, and a personal representative, and one who purchases a term from the sheriff under an execution, are assignees in law for the purpose of being liable to actions on a covenant for rent in a lease to the bankrupt's devisor or intestate (d). But the assignees of a bankrupt are not liable for the rent of premises assigned to them by the commissioners, unless they take possession (e). And where the assignees, having allowed the bankrupt's effects to remain upon the premises occupied by him nearly a twelvemonth after the bankruptcy, for the purpose of preventing a distress paid the arrears of rent due, at the same time intimating to the landlord that they did not mean to take to the lease unless it could be advantageously disposed of; and the effects were soon after sold and removed from the premises, the lease at the same time being put up for sale by order of the assignees, but there were no bidders for it: and they omitted to return the key to the landlord (who did not ask for it) for nearly four months after, but made no other use of the premises :—it was held that under these circumstances they were not liable to the landlord as assignees of the lease (ƒ). But where the assignees of a bankrupt intermeddle with and assume the management of a farm, this is a sufficient election to take to the term, and makes them liable to the landlord in consideration of their tenancy for all mis-management (g). And where the assignees of a bankrupt who was lessee of a pasture-ground, being chosen on the 8th of the month, allowed his cows to remain upon the demised premises until the 10th, and ordered them to be milked there; it was held that they had thereby taken possession of the premises, and become tenants to the lessor (h). 96. And where the assignees had once taken possession of the premises, (a) Vandenanker v. Desbrough. 2. Vern. (e) Bourdillon v. Dalton. I Esp. R. 233. S. C. Peake's Cases, 238. Naish v. Tatlock. (b) Roe d. Hunter v. Galliers. 2 T. R. 133. 2. H. Bl. 319. Church v. Brown. 15 Ves. 268. (c) Cooke's B. L. 370. Philpot v. Hoare. Ambler. 480. (d) Holford v. Hatch. Doug. 183-4. (f). Wheeler v. Bramah. 3. Camp. 340. (g) Thomas v. Pemberton. 7. Taunt. 206. (4) Welch v. Myers. 4. Camp. 368. they became chargeable with the covenants in the lease, although the bankrupt's effects were upon the premises, and they delivered up the keys immediately after the effects were sold (a). A release of an under tenant by the assignees of a bankrupt does not amount to an acceptance by them of the original lease (b). Where in an action of replevin between the assignees of a bankrupt (formerly tenant to A.) and the bailiff who distrained, one issue was, whether the assignees were tenants to A.; à verdict against the assignees on such issue is afterwards conclusive evidence as to the tenancy of the assignees in an action brought by A. for rent (c). Until the assignees do some act shewing their acceptance of premises held by the bankrupt under lease, the term remains in the bankrupt, and he is liable to the payment of rent accruing due subsequent to the bankruptcy (d) Debt on the reddendum in a lease, will not lie against the lessee for rent accrued after his bankruptcy, when he had ceased to occupy the premises, and the assignee is in possession under the commissioners' assignment (e). But the bankrupt's lessee, though out of possession, is still liable upon his covenant to pay the rent (ƒ). Whatever doubt may have been at one time entertained, as to the bankruptcy of the lessee being a bar to an action of covenant brought against him (g), it is now settled that the bankruptcy of the defendant cannot be pleaded in bar to an action of covenant for rent: for the 34 H. 8. c. 4. s. 1. only assigns the interest of the bankrupt in the land, but does not destroy the privity of contract between the lessor and lessee, wherefore an action of covenant remains after the estate is gone, though, generally speaking, it is otherwise of the action of debt. Covenant is founded on a privity collateral to the land (ƒ). A covenant of this kind is mixed; it is partly personal and partly dependent on the land; it binds both the person and the land: and this brings the case within the principle of Mayor v. Steward (b), in which case the dictum of Mr. J. Yates, that as the bankrupt was divested of his whole estate, and rendered incapable of performing the covenants, it would be a hardship upon him if he should still remain liable to it, when he is disabled from performing it, was clearly extra-judicial, though as proceeding from that excellent lawyer, it was deserving of great weight. A right of action, therefore, on a breach of covenant, not secured by a penalty, and where the damages to be recovered are uncertain, is (a) Hanson v. Stevenson. I. B. & A. 303. (d) Copeland v. Stephens. 1. B. & A. 593. (f) Mills v. Auriol. 1 H. Bl.433. S. C. 4. T.R. 94. (g) Ludford v. Barber. 1. T. R. 86. (h) 2. Burr. 2439. not barred by the certificate of the defendant, who became a bankrupt after the covenant was broken (a). Indeed, it is extremely clear, that where a bankrupt has taken a lease and entered into covenants for payment of rent and for repairing, &c. though the lease is taken from him and blended with the general mass of his property and divided amongst his creditors, yet his certificate will not deliver him from his liability to perform the covenants contained in that lease (b). The plaintiff, a lessee, assigned his term to the defendant, who thereupon gave to the plaintiff a bond to indemnify him against the rent and covenants in the lease. The bond was forfeited; the defendant afterwards became bankrupt, and the assignee accepted the lease: held that the plaintiff could recover on the bond, as he had not actually made any payment before the bankruptcy, and was therefore unable to prove under the commission, and as the Court considered the statute 49 G. 3 c. 121. s. 19. not to apply to collateral securities, or to an assignee, but to be confined to the case of a lessee (c). Changes by Insolvency.-Respecting the change made in the situation of landlord or tenant by the insolvency of either of them, it is to be observed that all interests in lands, and chattels real, must be inserted in the schedule which is to contain an enumeration of the insolvent debtor's estate and effects. A conveyance to a creditor of an insolvent debtor's estate by the clerk of the peace does not vest the estate in such creditor by relation, either to the date of the order or of the conveyance, but only from the actual execution of such conveyance by the clerk of the peace. Therefore, such creditor cannot recover in ejectment upon a demise laid before the execution, though after the estate was out of the insolvent debtor, and the order was made to convey the same to the lessor. Had another demise by the clerk of the peace been laid, it would have obviated any inconvenience which could have arisen in this case from the lessor's ignorance of the time at which the assignment was actually executed (d). Where there is a bond with a penalty, and also a deed of covenant, and the tenant takes the benefit of an Insolvent Act, whereby the bond is discharged, he is still liable on any future breach of his covenant; unless specially saved by the statute (e). Changes by Death. The alteration that is effected by the death of the landlord or tenant has reference to a devisee, or an executor or administrator; for as to the heir, he is out of the question, as such, with respect to a chattel interest. (a) Banister v. Scott. 6. T. R. 489. (b) Cowley v. Dunlop. 7. T. R. 565. 580. () Young v. Taylor. 8. Taunt. 315. (d) Doe d. Whatley v. Telling. 2. East's R. 257. (c) Cotterel v. Hooke, Doug. 98. By the statutes 32 and 34 H. 8. c. 1. s. 5. a man may devise all his lands, tenements, and hereditaments, reversions and remainders. Therefore, if one devise a reversion after an estate for life, or in tail, and that come to his possession, the land passes: and a general residuary clause in a will carries a reversion. So, by a devise of ground-rent on leases for years, the reversion passes. So a bequest of "leasehold ground-rents in S." passes the reversionary leasehold interest as well as the reserved rent (a). If one bequeath his indenture of lease, his whole estate in the lease passeth. So, if a termor of a house or land bequeath the same to B. without expressing how long he should have it, he shall have the whole term and number of years (b). Under a bequest of the testator's interest in leaseholds, a renewed lease obtained by the executrix was held to pass (c). But a renewed lease does not pass under the words "lease or premises" (d). Of Devisees.-A devisee of the lands is entitled to all those chattel interests which belong to the heir: and in one respect he has an advantage to which the heir is not entitled. Thus it has been holden, that if A. seised in fee of lands sow, and devise it to B. for life, remainder to C. in fee, and die before severance, B. shall have the emblements, and not the executor of A. Or that if B. die before severance, his executor shall not have them, but they shall go to him in remainder. Or that if the devise be only to B., and B. die before severance, there his executor shall have them (e). A devisee of the goods, stock, and moveables, is entitled to growing corn in preference both to the devisee of the land, and the executor (e). A devisee is an assignee in law, and as such is liable to an action on a covenant in a lease to pay rent, or on any other covenant that runs with the land (f). As he is liable to covenants that regard the reversion, so it is presumed he is capable of maintaining an action for the breach of such covenants; for by the common law, upon a covenant in law, the assignee of the estate shall have an action (g). A devisee, therefore, is in the predicament of an ordinary assignee, by whom an action lies upon every covenant that concerns the land ; as to pay rent, not to do waste, &c. The devisee of the equity of redemption, (the legal estate being in a mortgagee,) is not liable in covenant as assignee of all the estate, right, title, and interest of the original covenantor (5). (a) Maundy v. Maundy. 2. Str. 1020. Kaye v. Laxon. I Br. R. 76. (b) Went. Off. of Ex. 251. (c) James v. Dean. 15. Ves. 236. (e) Toll. L. of Ex.& Ad. 157. (f) Holford v. Hatch. Doug. 183-4. (g) Com. Dig. Tit. Covenant. (B. 3.) (b) The Mayor, &c. of Carlisle v. Blamire. 8. East. 487. |