CASES ARGUED AND DETERMINED IN THE Court of KING'S BENCH, IN Michaelmas Term, In the Second Year of the Reign of GEORGE IV. 1821. VERNON against SMITH. COVENANT by the assignee of the lessor against the lessee. The declaration stated, that one J. Hance, the lessor, before the time of making the lease, was lawfully possessed of the tenements and premises for the residue and remainder of a certain term of years, whereof seven years were then unexpired; which tenements and premises, with the appurtenances, then were and thence hitherto have been and still are situate within the weekly bills of mortality, mentioned in the 14 G. 3. c. 78.; and being so possessed thereof, he, the said J. Hance, by indenture, demised and leased to the defendant the tene (a) See 4 B. & A. 345. Saturday, (a) A covenant to insure against fire premises situated within the weekly bills of mortality mentioned in 14 G. 3. c. 78., is a covenant that runs with the land. VOL. V. B ments 1821. VERNON against SMITH, ments and premises, with the appurtenances, habendum, for seven years, at a certain rent therein mentioned; covenant by the defendant that he should and wouldforthwith, at his own expence, and from time to time during the term, insure in some of the public offices in London or Westminster, for the purpose of insuring houses from casualties by fire, the messuage, dwellinghouse, coach-house, stable, and premises thereby demised or thereafter to be erected and built thereon, to the amount of 8007., in the joint names of the defendant, his executors, administrators, or assigns, and of Robert Stone, the ground landlord of the premises, his heirs or assigns; and should and would, at the request of Hance, or of the ground landlord, their heirs or assigns, produce the policy and receipts for such insurance. The declaration set out the proviso in the lease for re-entry, on breach of any of the covenants. It then stated the Defendant's entry into the premises, and that, after the making of the indenture, the term was assigned by Hance to the plaintiff. The breach assigned was, that the defendant did not insure. The second count stated, that, before the making of the demise to the defendant, in the first count mentioned, and also before and at the time of the making of the demise thereinafter mentioned, Robert Stone was seised in fee of and in the said demised tenements, and by a certain indenture, demised the same to J. Hance, habendum, for 85 years and six months. And that J. Hance, by that indenture, covenanted to insure the premises from fire, to the amount of three-fourths of the value thereof, in the joint names of himself and Stone, with a proviso for reentry, in case of non-performance of the covenants. It then stated, that three-fourths of the value of the pre mises amounted to 800l., and that, by reason of the said demised premises remaining uninsured, Stone brought an action of ejectment for the forfeiture, and the plaintiff was forced to pay the costs to him, amounting to 500l., and also to sustain his own costs, amounting to 10007. Breach, that the defendant had not kept the covenant made by him, as stated in the first count. To this declaration, there was a general demurrer and joinder. Comyn, in support of the demurrer. The assignee of the lessor cannot maintain this action, because the covenant to insure against casualties by fire is a mere personal covenant. Covenants which run with the land must be such as affect the land itself, and not the collateral interest of the lessor. The rule upon this subject is accurately laid down in Spencer's case (a), Bally v. Wells (b), and The Mayor of Congleton v. Pattison. (c) In Spencer's case it is expressly stated, that a covenant to pay a collateral sum to the lessor or a stranger, shall not bind the assignee, because it is merely collateral, and in no manner touches or concerns the thing demised. By the covenant to insure, the lessee agrees to pay an annual sum to a stranger, in consideration of which that stranger is to pay to the lessee a certain stipulated sum, in case the premises should be injured by fire. There is not any stipulation that that sum, when recovered, shall be laid out upon the land, and the tenant may therefore apply it to any other purpose. The covenant does not, therefore, in any respect affect the nature, quality, or value of the thing demised, independently of collateral circumstances, and therefore is not a covenant which passes to the assignee. Secondly, (a) 5 Coke, 17. (b) Wilmot's Notes, 344. (c) 10 East, 330. B 2 the 1821. VERNON against SMITH. 1821. VERNON against SMITH. the nature of the covenant cannot be altered by the provisions of the 14 Geo. 3. c. 78. s. 83., which apply only to the case where an insurance has actually been made, and does not go to regulate the covenants between lessor and lessee. No insurance having been made in this case, it does not fall within the statute. Thirdly, the statute only enables the directors of the company, upon the request of the persons interested in the houses damaged by fire, or upon any ground of suspicion that the persons insured had been guilty of fraud, or of wilfully setting their houses on fire, to cause the insurance money to be expended in rebuilding the premises. Now as it appears, from the preamble of the clause, that the object was to prevent fraudulent insurances, the power of the directors so to apply the money ought to be restrained to such cases only. Nor does it apply to a case where the money has been disposed of among the contending parties previously to the application of the parties interested. The statute, therefore, is not absolutely directory that the money recovered shall at all events be laid out on the premises, and, consequently, it does not alter the situation of the defendant in this case. Chitty, contrà. The lessee having covenanted to cause the insurance to be effected in the joint names of the ground landlord and himself, could not, in the event of his having effected such an insurance, and a loss having afterwards occurred. have received the money without the consent of such landlord, and a court of equity would have directed the money to be laid out in rebuilding or repairing the premises. The interest of the landlord is materially varied by the circumstance of the lessee lessee being bound to insure: for the rent reserved is decreased, in proportion to the amount of the annual premium paid, and the assignee of the lessor would take the premises at an increased rent, unless the lessee had covenanted to insure. The covenant, therefore, to insure affects the nature, quality, or value of the thing demised, and, therefore, is a covenant which runs with the land, and it is quite clear, that, by the provisions of the 14 G. 3. c. 78. s. 83., the covenant to insure, in the present case, becomes, by operation of law, a covenant to lay out the money recovered in rebuilding the premises, at the request of the lessor; for the enacting part of the clause does not confine the power of the directors to lay out the money to cases of fraud, but is in the alternative, and enables them so to do in any case, upon the request of the party interested. Coupling, therefore, the covenant with the statute, it is, in effect, a covenant to lay out the money recovered in rebuilding the premises, in case the lessor requires it; and that being so, it is clearly a covenant which respects the thing demised, and therefore passes to the assignee. ABBOTT C. J. It is not necessary, on the present occasion, to give any opinion on the effect of a covenant to insure premises situate without the limits mentioned in the 14 Geo. 3. c. 78. These premises lying within those limits, the effect of that statute is, to enable the landlord, by application to the governors or directors of the insurance office, to have the sum insured laid out in rebuilding the premises. Now a covenant to lay out a given sum of money in rebuilding or repairing the premises, in case of damage by fire, would clearly be a covenant running with the land, that is, such a covenant 1821. VERNON against SMITH. |