Joint covenants shall be taken distributively, for the benefit of the estate. 1 Esp. Dig. 343. As where two made a lease, and covenanted, "that the Meriton's case, lessee should enjoy the land without let from them or any Noy. 86, cited in other person," and one alone disturbed the lessee; it was adjudged to be a breach of covenant, and that this action lay against the disturber, though the words of the covenant were not several. Where a covenant is joint and several, an action may be Lilly v. Hedges, brought against one, and breach assigned in the neglect of 1 Stra. 553. both. As in covenant by two, to receive the plaintiff's rents, and to account; and breach assigned the not accounting, they nor either of them; for perhaps one never sealed the deed; and one man often covenants for the act of another. Lawrence v. Parker, It has been decided, that a covenant by three to convey lands with warranty is not complied with, by a conveyance and al. with warranty by one of the three covenantors, and the release of the other two. VIII. Of covenant in reference to assignees. 1. By assignees. 1 Mas. Rep. 191. Noke's case, 4 Co. 80. Spencer's ease, Covenants in law, which run with the land, shall extend to the assignee, who may maintain this action on them. As upon the words "demise and grant," the assignee shall have a writ of covenant if ejected; for as the lessee or 5 Co. 17. assignee have the annual profits in return for rent, therefore, for the loss of these, he is entitled to a compensation from lessor. Assignees, who come in by act of law, shall have the benefit of these covenants, and maintain this action. 1 1 Esp. Dig. 352. 5 Co. 17, a. As he who purchases a lease for years, sold under an execution; so tenant by the curtesy; so husband of feme lessee for years who survives; all these are legal assignees, 1 Esp. Dig. 353. who may maintain this action. It is a general rule, that when a feoffment or demise is Bickford v. Page, made of land, with covenants that run with the land, if the 2 Mas. Rep. 460. Spencer's case, 5 Co. 16. Spencer's case, Ibid. Cockson v. Cock, Dean and Chapter of feoffee or lessee assign the land before the covenants are broken, the assignee only can bring an action of covenant to recover damages, unless the nature of the assignment be such, that the assignor is holden to indemnify the assignee against a breach of the covenants by the feoffor or lessor. This rule is founded on the principle, that no man can maintain an action to recover damages, who can have suffered no damages. II. Against assignees. When the covenant relates to, and is to operate on a thing in being, parcel of the demise, the thing to be done by force of the covenant is quodammodo annexed to the thing demised, and shall go with the land, and bind the assignees to the performance, though not named. As if the covenant is to repair a house then demised, this shall bind the assignee, though not named; but it is otherwise where the covenant relates to a thing not in being, at the time of the demise. As if it be to build a wall on the land demised, this, not being in esse when the covenant was made, it shall not extend to the assignee, if not named. But if the covenant mentions the assignee; as if lessee covenants for him and his assigns, there the assignee shall be bound by any covenant, for any thing to be done on the thing demised; as to build a wall on the lands demised; but to do any thing which is merely collateral to the thing demised, as to build a house on some other part of the lessor's land, there assignee shall not be bound, though he is named. Wherever a covenant is for the benefit of the estate demised, this shall extend to the assignee, though not named. As covenant "to leave fifteen acres every year untilled;" this covenant, being for the benefit of the estate, extends to the assignee, though not named, and he is liable for a breach. So a covenant which extends to the support of the thing demised, shall bind the assignee, though not named. As a covenant to repair the houses, &c. Holford v. Hatch, To entitle the lessor to maintain an action of covenant against a lessee, as assignee, he must be assignee of the Dougl. 183. whole term; for, technically speaking, such only are as signees. But covenant will lie against an assignee of part of the Congham v. King, thing demised. As where plaintiff demised two houses, Cro. Car. 221. with covenant on the part of the lessee for himself and assigns to repair; he assigned one of them, and, for not repairing, lessor brought covenant against the assignee, and the action was held well to lie. With regard to how far the lessee or assignee are chargeable in covenant, there is a considerable difference. 1st. lessee has, from his covenant, both a privity of contract and of estate; yet the privity of contract continues, and he is liable in covenant, notwithstanding the assignments. But, 2dly, the assignee comes in only in privity of estate, and he is liable only while in possession. 1 Esp. Dig. 350. 1 Esp. Dig. 348, 349. Selw. 418. IX. Of covenant in reference to heirs and executors. Covenants which run with the land shall descend with the reversion to the heir of the covenantee; and he may sue for a breach thereof: As where the lessee covenanted with the lessor, his executors and administrators, to 2 Lev. 92. repair; it was holden, that the heir of the lessor, though not named, might have covenant against lessee for not repairing. Lougher. Williams, But covenants merely personal, descend exclusively 1 Esp. Dig. 357, 358. to the executor or administrator: As if A. covenants cites Bro, title Cov. 12. that B. shall serve D. as an apprentice for seven years, and dies, and B. departs within the time, covenant will lie against the executor of A., though not named. X. Of covenants for quiet enjoyment; and to save harmless. Where there is a covenant for quiet enjoyment, this shall not extend to a tortious ejectment by a stranger; because that for this wrong, lessee may have his remedy Tisdale v. Sir W. 1 Esp, Dig. 323. Tisdale v. Essex, Perry v. Edwards, 1 Stra. 400. Selw. 412, 413. Tisdale v. Essex, Selw. 413. 1 Esp. Dig. 325. Perry v. Edwards, 1 Stra. 400. 1 Esp. Dig: 327. against the stranger himself. But if the lessee be eject ed by lessor himself, then lessee may have covenant. But if the stranger claims by elder title than the lessor, lessee may have covenant against lessor; for he then can have no redress against the stranger, whose title is good in law. So if lessor covenants expressly that lessee shall enjoy during the term, " quietly, peaceably, and without interruption," this will extend as a covenant against all tortious ejectments whatever. So also, though the general covenant to save harmless, or for quiet enjoyment, does not extend to the tortious acts of a stranger; yet lessor may covenant against the acts of a particular person or persons, in which case cove nant will lie for a tortious ejectment by them. In actions for breach of a general covenant for quiet enjoyment, it is essentially necessary, that it should appear on the face of the declaration, that the eviction was made by a person claiming by a legal title. for For in an action on a covenant, in a lease for years, enjoyment during the term, the breach assigned was, that one Elsing entered upon the plaintiff, and ejected him The question, on demurrer, was, whether the ejectment by Elsing, being taken to be by wrong, because no title was laid in him, should be adjudged a breach of covenant; and the court was of opinion, that it was not. A covenant to save harmless is similar in its nature to that for quiet enjoyment, and the law as to it is the same. Therefore this covenant is not broken by the tortious act of any one not claiming under the lessor. XI. Of covenant for repairs. If lessee covenants to keep a house in repair, and leave it in as good plight as it was at the time of making the lease; in this case, the ordinary and natural decay, is no breach of covenant; but the lessee is bound to de his best to keep it in the same plight, and so should keep it covered. A general covenant to repair and to deliver up in rea pair, shall extend to whatever erections or buildings shall be raised during the term. 1 Esp. Dig. 323. Douse v. Earle, 2 Vent. 126. S. C. As on a demise of three messuages for forty one years, lessee covenanted" to build three houses, in the room of 3 Lev. 264. those which were then standing, to maintain the houses so to be erected, and to deliver them up in sufficient repair." Lessee erected five houses, and, at the end of the term, left one of them out of repair. Covenant was held to lie; for the covenant to leave in repair should extend to all. XII. Of covenants of seizin; and a right to convey. Marston v. Hobbs In an action on these covenants, the defendant must prove his seizin when the deed was executed. A seizin 2 Mas. Rep. 43% in fact is sufficient, whether he gained it by his own disseizin, or whether he was in under a disseizor. If at the time he executed the deed, he had the exclusive possession of the premises, claiming the same in fee simple, by a title adverse to the owner, he was seized in fee, and had a right to convey. So if defendant's grantor had no authority to convey the premises to him, yet if in fact defendant entered under colour, though not by virtue of the deed, and acquired a seizin by disseizin by ousting the former owner, he has not broken his covenants. But if the defendant does not shew an authority in his grantor to make the conveyance, he must fail (notwithstanding the registry of the deed, which supplies the want of livery of seizin, only where the grantor has right to convey) unless he satisfies the jury that he entered under colour of that conveyance, and had acquired a seizin of the premises. An action for the breach of these covenants cannot be maintained by an assignee of the purchaser; because, Ibid: Ibid Ibid. |