time or times be payable, for or by virtue of such insurance as aforesaid, with full power to appoint any other person or persons in his or their place or stead for that purpose; and doth hereby expressly declare, that the receipt and receipts of the said C. D., his executors, administrators, or assigns, or of his or their attorney or attorneys, shall from time to time, and at all times, be a good, sufficient, and effectual, discharge for any sum or sums which shall be payable, or paid to him or them, for or in respect of any insurance as aforesaid; AND the said A. B. doth hereby for himself, his heirs, executors, and administrators, covenant with and to the said C. D., his executors, administrators, and assigns, that notwithstanding any act, matter, or thing, done or committed by him to the contrary, he, the said A. B., at the time of the execution of these presents, hath in himself good right to assign the said policy of insurance unto the said C. D., his executors, administrators, and assigns, in manner aforesaid; AND that free and clear of and from all charges and incumbrances whatsoever; and further, that he, the said A. B., his executors, administrators, and assigns, shall and will at all times do and execute all further acts, deeds, matters, and things, whatsoever, for the better assigning and assuring the said policy of insurance and premises unto the said C. D., his executors, administrators, and assigns, to and for his and their own proper use and benefit, or otherwise, as he or they, or his or their counsel in the law, of the degree of a barrister, shall advise or require. In witness, &c. R Construc sigument. OBSERVATIONS AND CASES. WHERE a person transfers all his interest in a tion of as- term to another, reserving rent to himself, it does not operate as an assignment, but as an underlease.(s) One who has a term which expired on the 11th of November, let the premises orally from the 11th of September to the 11th of November for £270, payable immediately; held that this was a lease of which parol evidence might be given, and not an assignment requiring a writing. (t) A grant by lessees for lives of all their estate, right, title, interest, &c., in the premises, to one, and his executors, habendum to him and his executors for ninety-nine years, if the lives should so long continue, in as large, ample, and beneficial way, &c., as the grantors, their heirs, &c., held the same;-this was considered as no assignment of the freehold, and consequently not of the whole interest of the grantors in their lease; and, therefore, the reversioners (the lives being expired within the term) could not maintain covenant against the under-lessee for not delivering up the premises in good repair. (u) An assignment of a term to defendant of certain premises indorsed on the back of the lease which was executed by the plaintiff, but not by the defendant, is evidence for the plaintiff to show that he has performed his part of an agreement to assign the lease.(v) Under a contract for the assignment of a term, whether from the original lessee or a mesne assignee, the purchaser must covenant for indemnity against payment of rent and performance of covenants, though he cannot have a covenant for title from the assignor as being an executor, and Preece v. Corrie, 2 M. & P. 57. 5 Bing. 24. (u) Derby (Earl) v. Taylor, 1 East, 502. also by express stipulation. (w) A reversion of a tenancy from year to year cannot pass without deed; therefore, where A. and B. had occupied apartments for some years in the same house as yearly tenants, and A. secretly made a parol agreement with the common landlord in May, to take the whole house as a yearly tenant from the then ensuing Midsummer, at which season B.'s tenancy had commenced; but B. never attorned or acknowledged A. as his landlord, but paid his ensuing Midsummer rent, and tendered his ensuing Michaelmas quarter's rent, (acceptance of which was refused,) to the landlord's agent, who directed him, on both occasions, to pay his rent from the former period to A.; and A., on B.'s refusal to do so, distrained for the Michaelmas quarter's rent, and at the following Christmas gave B. six months' notice to quit:-in an action of trespass for the illegal distress, it was held, first, that A.'s interest in the part of the premises occupied by him was undetermined, no regular notice to quit having been given him by his proper landlord. Secondly, that the reversion of it had not passed directly to A. by parol, nor indirectly as appendant to A.'s apartment, considered as surrendered to the landlord by virtue of the agreement, and re-demised. And thirdly, that B. was still the tenant of his original landlord, and not of A., and consequently that the action was maintainable.(x) A lease having been granted for lives, with covenant for perpetual renewal, the grantees demised the land by an indenture having all the forms, and subject to all the obligations of a common lease, with covenants for payment of rent, and powers reserved of distress and re-entry for the non-payment, covenant for perpetual renewal, &c. The habendum was for the same lives as in the original lease, but this fact did not appear by the indenture of lease. The rent being in arrear, and a distress thereupon taken for it, upon a replevin, (w) Staines v. Morris, 1 Ves. & B. 9. Liability of lessee. Liability of assignee. the defendants pleaded their title by a general avowry under the Irish statute, 25 G. 2., c. 13, (11 G. 2. Eng.); held that the evidence was admissible to show that the lives in the sub-lease were the same as in the original lease; that the whole interest having been granted it operated as an assignment; and that the defendants in replevin could not avow generally under the statute.(y) The lessee under express covenant to pay the rent and perform the covenants, is liable during the whole term, notwithstanding assignments. (2) Without acceptance of rent by the lessor from the assignee of rent, or some other evidence of his assent, will not be sufficient to discharge the lessee from an action of debt, although the lessor have notice.(a) A lessee cannot plead to covenant for rent an assignment and tender by the assignee.(b) The assignee of a lease is not liable to the original lessor for the breach of a covenant which does not run with the land, unless he be expressly named in the lease as a covenantor. (c) Nor is he liable for a breach in the lessee's time when he comes into possession afterwards. (d) The assignee of a lease for years who has assigned over, is discharged from the covenant to pay rent before the entry of his assignee.(e) An assignee is not liable for rent accruing due after an assignment, even though such assignment is wrongful.(f) There is no fraud in the assignee of a term assigning over his interest to whom he pleases, with a view to get rid of a lease, although such person neither takes actual possession, nor receives the lease.(g) In covenant for rent against an assignee, an assignment to a feme covert (y) Pluck v. Digges, 5 Bligh, N. S. 31. (z) Staines v. Morris, 1 Ves. & B. 9. (a) Wadham v. Marlow, 4 Doug. 54. 1 H. B. 438, n. 2 Chit. 600. 8 East, 314. (b) Orgill v. Kemshead, 4 Taunt. 642. (e) Grey v. Cuthbertson, 2 Chit. 482. 1 Selw. N. P. 498. 4 Doug. 351. (d) St. Saviour's, Southwark v. Smith, 3 Burr. 1271. 1 W. B. 351. Walker v. Reeve, 3 Doug. 19. 2 Doug. 461, n. (ƒ) Paul v. Nurse, 8 B. & Č. 486. (g) Taylor v. Shum, 1 B. & P. 21. before the rent accrued is a good plea in bar. (h) A lessee by deed poll assigned his interest in the demised premises to A., subject to the payment of rent and the performance of the covenants contained in the lease; A. took possession and occupied the premises under this assignment, and before the expiration of the term assigned to a third person. The lessor sued the lessee for breaches of covenant committed during the time that A. continued assignee of the premises, and recovered damages against the lessee;-held that the lessee might maintain an action upon the case founded on tort against A., for having neglected to perform the covenants during the time he continued assignee, whereby the lessee sustained damage. (i) Where a lessee who was bound by a covenant to repair premises demised to him, underlet part of them with a similar obligation by his tenant, to repair them within three months after notice given to him for that purpose, and the premises underlet becoming out of repair, the superior landlord gave notice to his immediate tenant to repair them at the peril of forfeiting his lease, and the under-tenant after receiving notice to repair neglected to do so within three months, whereupon the lessee, in order to avoid a forfeiture of his whole estate, entered on the premises, and put them in tenantable repair;-held that his under-tenant was liable to pay him the whole expense so incurred, although the former had sold his interest in the premises to a purchaser who had entirely re-built them before the action for the recovery of such expense was brought.(j) Where the assignee of an under-lessee, containing a covenant to repair, suffered the premises to go out of repair, and the original lessor brought an action against the original lessee for the breach of a similar covenant contained in his lease, held that the damages and costs of that action, and also the costs (h) Barnfather v. Jordan, 2 Doug. 452. Burnett v. Lynch, 5 B. & C. 589. 8 D. & R. 368. |