as would be binding on the assignee of the lessee, and which the assignee of the lessor might enforce. Here the defendant does not covenant expressly in those words, but only that he will provide the means of having 8001. ready to be laid out in rebuilding the premises in case of fire. But, connecting that covenant with the act of parliament, the landlord has a right to say, that the money, when recovered, shall be so laid out. It is, therefore, as compulsory on the tenant to have the money laid out in rebuilding, and as beneficial for the landlord as if the tenant had expressly covenanted that he would lay out the money he received in respect of the policy upon the premises. For these reasons, I think that this is a covenant running with the land, for the breach of which the assignee of the lessor may sue; and, consequently, there must be judgment for the plaintiff.
BAYLEY J. I am clearly of opinion, that the assignee of the reversion is entitled to sue upon the covenant in question. The rule is, that if the covenant respect the thing demised, and be co-extensive with the estate of the person to whom it is made, and be made with him and his assigns, it passes to his assignee. The only question in this case is, does this covenant respect the thing demised? It is a covenant to insure the premises against damage by fire. By the operation of the 14 Geo. 3. c. 78. s. 83., the effect of that insurance is not merely to put into the pocket of the person effecting it, in case of loss, the amount of the money insured, but to entitle the owner of the estate to have that money laid out on the land; and if such be the effect of the covenant, it does affect the thing demised, as much as a covenant to repair or rebuild, in case of damage by fire.
I think, therefore, that there must be judgment for the plaintiff.
HOLROYD J. I am of the same opinion. If the covenant to insure to the amount of 800l., in case of fire, could be considered as a covenant to pay a collateral sum to the lessor, the present action could not be supported; but, taking that covenant, together with the stat. 14 G. 3. c. 78. s. 83., I think that the sum insured is not to be considered as a collateral sum, but as a sum which, by operation of law, must be laid out upon the premises. It is, therefore, a covenant to do a matter which concerns the land, and falls within the rule laid down in Spencer's case, and by Lord Chief Justice Wilmot in Bally v. Welis. He there lays it down. thus: "Covenants in leases, extending to a thing in esse,' parcel of the demise, run with the land, and bind the assignee, though he be not named, as to repair, &c. And if they relate to a thing not in esse,' but yet the thing to be done is upon the land demised, as to build a new house or wall, the assignees, if named, are bound by the covenants; but if they in no manner touch or concern the thing demised, as to build a house on other land, or to pay a collateral sum to the lessor, the assignee, though named, is not bound by such covenants; or if the lease is of sheep or other personal goods, the assignee, though named, is not bound by any covenant concerning them. The reasons why the assignees, though named, are not bound in the two last cases, are not the same. In the first case, it is because the thing covenanted to be done has not the least reference to the thing demised; it is a substantive, independent agreement, not quodam modo,' but nullo modo,' annexed
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or appurtenant to the thing leased. In the case of the
mere personalty, the covenant doth concern and touch
the thing demised; for it is to restore it or the value at
the end of the term; but it doth not bind the assignee,
because there is no privity, as there is in the case of a
realty between the lessor and lessee and his assigns, in
respect of the reversion; it is merely collateral in one
case; in the other it is not collateral, but they are total
strangers to one another, without any line or thread to
unite and tie them together; and to constitute that privity
which must subsist between debtor and creditor to sup-
port an action." And in page 346., after citing several
cases, from which he deduces the principle laid down,
he says,
"All these cases clearly prove, that 'inherent'
covenants, and such as tend to the support and mainte-
nance of the thing demised, where assigns are expressly
mentioned, follow the reversion and the lease, let them
go where they will." In the present covenant, assigns
are expressly included; and, inasmuch as the perform-
ance of the covenant would, in the event of the premises
being destroyed or injured by fire, tend to the support
and maintenance of the thing demised, I am of opinion,
hat it falls within the rule laid down by Lord C. J.
Wilmot, and, consequently, that there must be judgment
for the plaintiff.
BEST J. It has been argued, from the preamble to the 83d section of the 14 G. 3. c. 78., that this provision of the statute only applies to cases where fraud is suspected. But the enacting part of the clause goes beyond the mischief mentioned in the preamble, and is large enough to embrace this case. For, under the first branch of it, where the owner of the building re
quests the insurance company so to apply the money,
no suspicion of fraud is necessary to make such request
compulsory on the directors. Within the district, there-
fore, to which the building act applies, this covenant
provides a fund for the rebuilding of the premises, which
the owner has a right to require shall be applied to
that purpose; and then it is clear, that the assignee
has a direct interest in having the insurance kept up.
But I think, also, that if the premises were in any other
part of the kingdom, this would be a covenant that
would pass to an assignee. A covenant in a lease which
the covenantee cannot, after his assignment, take advan-
tage of, and which is beneficial to the assignee as such,
will go
with the estate assigned. If this were not the
law, the tenant would hold the estate discharged from
the performance of one of the conditions on which it
was granted to him. The original covenantee could
not avail himself of this covenant; he sustains no loss
by the destruction of the buildings, and therefore has
no interest to have them insured. In The Sadler's Com-
pany v. Badcock (a), Lord Hardwick says, that Lord
Chancellor King, in the case of Lynch v. Dayrell, held,
that a person who had assigned his interest in a house
before the fire happened which consumed it, had no
right to the money under the policy. I cannot say
whether a court of equity would take any steps to se-
cure the application of the money insured for the be-
nefit of the estate. I presume, that if a court of equity
would assist a covenantee to have the money, recovered
under the policy by his tenant, expended on the estate,
it would render the same assistance to an assignee.
If a court of equity will not interfere, either for the one
or the other, still this covenant is as beneficial to an
assignee as it was to the covenantee.. It secures to the
tenant the means of performing his covenant, and to the
landlord, a solvent instead of a ruined tenant.
It is a
covenant beneficial to the owner of the estate, and to
no one but the owner of the estate; and therefore may
be said to be beneficial to the estate, and so directly
within the principle on which covenants are made to run
with the land. At the time that the 32 Hen. 8. c. 34.
was passed, an immense quantity of land passed from
the dissolved monasteries to the king, and from the king
to the most favoured and powerful of his subjects.
Much of this land was on lease, and both the king and
his parliament must have been anxious that the as-
signees of the reversion should be in as good a situation
as the lessors were. This statute expressly enacts,
"that
grantees of estates shall have and enjoy the like advan-
tages against lessees, their executors, &c., by entry for
non-payment of rent, or for doing of waste or other
forfeiture, and the same benefit and remedy by action
for not performing of other conditions, covenants, or
agreements, as the lessors or grantors themselves might
have had." Lord Coke (Co. Litt. 215. b.) limits the
operation of these general words, to "such conditions.
as are incident to the reversion as rent, or for the be-
nefit of the estate." He adds that the statute does not
extend to "covenants for payment of a sum in gross,
delivery of corn, wood, or the like." A sum in gross is
in the nature of a fine which belongs to the lessor, and
can never be intended for an assignee. By the de-
liveries of corn and wood were meant deliveries of those
articles at the mansion-house of the lessor, and not
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