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Action against Assignee of Lease.Defence.

645 vested in the defendant by assignment, it will be sufficient prima facie evidence to show that the defendant has paid rent as assignee, or is in possession of the premises. 2 Phill. Ev. 125; Peake, Ev., 5th ed., 284. Thus, where A. had been tenant of certain premises, and upon his leaving them, B. had taken possession, it was held that he might be presumed to come in as assignee of A., though he had never paid rent. Doe d. Morris v. Williams, 6 B. & C. 41. The jury may, however, decline to act upon such evidence, and find that there was no assignment in writing. Paull v. Simpson, 9 Q. B. 365. When the defendant has never entered or done anything to admit the assignment, his title may be proved by producing memorials of the mesne conveyances registered by parties under whom the defendant claims, after notice to the defendant to produce the originals. Wollaston v. Hakewill, 3 M. & Gr. 297. In this case it was decided that an executor who had not entered was liable as assignee, unless he discharged himself by pleading that he was no otherwise assignee than as executor, and that he had never entered into possession. Proof that the defendant is executor de son tort appears sufficient to impose upon him the liability of assignee. Paull v. Simpson, supru. But one who has occupied premises under an executor de son tort, without any legal assignment of the lease, would seem to be free from such liability, except perhaps where the substitution in the tenancy could be proved to be fraudulent. S. C. Where a person has entered into possession of, or received the rents and profits of, premises demised to an intestate, and paid the rent reserved thereon, he is estopped from denying that he is assignee of the term, even though he is not chargeable as ececutor de son tort. Williams v. Heales, L. R., 9°C. P. 177. Where a term has been assigned by way of mortgage it is not necessary, in an action on a covenant charging the mortgagee as assignee, to prove that he has entered upon the mortgaged premises. Williams v. Bosanquet, 1 B. & B. 238. A trustee to whom debtor's estate, including a lease, has been assigned for the benefit of creditors is liable as assignee if he do not repudiate the lease; see White v. Hunt, L. R., 6 Ex. 32, where the tenancy was from year to year.

Action against assignee of lease. Defence.] In answer to this action the defendant may prove that he is not an assignee of the whole term, but only an undertenant. Holford v. Hatch, 1 Doug. 183; Derby, El. of v. Taylor, 1 East, 502. If he is charged as assignee of all the estate in certain premises, and he is in fact an assignee of an undivided part of the premises only, he cannot plead this in bar to the action ; Merceron v. Dowson, 5 B. & C. 479 ; as it amounted to a plea in abatement only; Grattan v. Wall, I. R., 2 C. L. 484. By Rules, 1883, 0. xxi., r. 20, “no defence shall be pleaded in abatement." As to the manner in which an objection, formerly pleaded in abatement, is now to be taken, vide ante, p. 87. The defendant is not chargeable as assignee of the land for the entire rent, if the assignment be of part only. Curtis v. Spitty, 1 N. C. 756. The defendant may show that he is only devisee of the equity of redemption, the legal estate being in the mortgagee; Carlisle, Mayor of, v. Blamire, 8 East, 487; or only appointee, and not liable as such on a covenant binding the assigns of the appointor. Roach v. Wadham, 6 East, 289.

Formerly many questions arose as to the effect of a lessee's bankruptcy on the covenants entered into by him in his lease ; and much difficulty arose under the earlier bankruptcy acts as to whether the assignee had or had not accepted the lease so as to be liable on the covenants thereof

. These questions do not, however, arise under the Bankruptcy Act, 1883, which is now in force. Vide ante, pp. 307, 308.

As to what covenants run with the land, so as to bind the assignees, see Spencer's case, 1 Smith's L. Cas. and notes.

Action for rent under indenture of demise.] The action may be in the form of debt for the rent reserved by the lease, or of covenant on the covenant to pay. In the former case, the cause of action does not in strictness fall in this place ; but, for convenience, debt and covenant for rent are here treated of together. See also Action for use and occupation, ante, p. 303, under which title some of the proofs applicable to issues, which occur in this action, will be found.

An action lies by the lessor, or the grantee of his reversion against the lessee, on his express covenant to pay rent, notwithstanding he have assigned the lease, and the lessor, or his grantee have accepted the assignee as his tenant. 1 Wms. Saund. 240 ; 2 Id. 302, (5). But the lessor cannot, after he has parted with his reversion, bring an action of covenant for rent which accrued due after the grant of the reversion, the action can only be brought by the grantee of the reversion, for the stat. 32 Hen. 8, c. 34, has transferred the privity of contract together with the estate in the land to him. 1 Wms. Saund. 241 f, (6). But where the lessor has assigned his reversion, in a part only of the land, the lessee is liable to him on the covenant, for an apportioned rent, in respect of the residue of the land, although the lessee had assigned all his interest in the whole of the land. Swansea, Mayor, de. of, v. Thomas, 10 Q. B. D. 48. The lessor may bring an action of debt against the assignee of the lessee by reason of the privity of estate ; but debt will not lie against the original lessee, after the acceptance of the assignee by the lessor as his tenant, for this extinguishes the privity of contract which was created between them by the lease. 1 Wms. Saund. 241 b, (5); 2 Id. 302, (5); Wadham v. Marloue, 8 East, 314, n; 1 H. Bl. 437.

In an action of debt for rent, the statement of claim states a demise at a certain rent, the entry or holding of the defendant, and the accruing of rent during a certain period. Sometimes the lease by indenture is set out, but it is not then the gist of the action ; but it is of course a material part of the claim where the action is in covenant.

Under the J. Act, 1873, s. 25, (5), (ante, p. 281,) a mortgagor may sue for the rent of land mortgaged, which he is allowed by the mortgagee to enjoy.

Action for rent. Evidence on denial of the demise, dc.) When the lease is in the pleadings stated to be under seal, the contract is denied, and may be disproved under a defence denying the demise, or the execution of the deed.

Where the demise is denied, it may be proved by production and proof of a lease, executed by the plaintiff and accepted by the defendant, or by proof of the execution of it by the defendant, just as if the plaintiff had sued on the deed, and the defendant had denied execution ; see 1 Wms. Saund. 276, (11); and post, Action for recovery of land by landlord, and Action of replerin, -Tenancy of the plaintiff. Where it was alleged that the plaintiff had demised to the defendant three rooms, and it appeared in evidence that the demise was of three rooms and the use of the furniture, it was held to be rightly stated according to the legal effect; for the rent could not issue out of the chattels. Walsh v. Pemberton, 1 Selw. N.P., 2nd ed. 640 : Farewell v. Dickenson, 6 B. & C. 251. But if the demise is of a messuage and tithes, or of a messuage and of a licence to sport, reserving an entire rent, and is not under seal, an action cannot be maintained for the rent reserved if the defendant have entered only; for the incorporeal right cannot pass except by deed ; Gardiner v. IVilliamson, 2 B. & Ad. 336 ; Bird v. Higginson,

6 Ad. & E. 824; but if the tenant have enjoyed the right for the term, he must then pay the rent agreed on. See Thomas v. Fredricks, 10 Q. B. 775; Adams v. Clutterbuck, 10 Q. B. D. 403.

Action for rent. Defence. Payment.] As to proof of payment, vide ante, pp. 312 and 615, et seq. The defendant may show payment to the plaintiff

, or to another by his appointment ; Taylor v. Beal, Cro. Eliz. 222 ; Gilb. Ev.

Action for Rent. --Breach of Covenant not to Assign, dic.

647

283 ; or, that the plaintiff has agreed that a debt due by him to the defendant shall go in satisfaction of the rent ; Gilb. on Debt, 443 ; but not that the plaintiff was bound by covenant to repair the premises, and that he (the defendant) expended the rent in necessary reparations ; for this is only a cause of cro: action ; Taylor v. Beal, Cro. Eliz. 222; B. N. P. 177; and would therefore now be matter for counter-claim. But if the lessor direct the lessee to repair, and the lessee repair accordingly, the money so laid out may be evidence of payment. Gilb. on Debt, 442.

A compulsory payment of a charge upon the land may be recouped by the defendant out of his rent. Dyer v. Bowley, 2 Bing. 94, and cases cited post, tit. Action of replevin,-Denial of rent being in arrear. But the defence would require to be pleaded specially.

As to deductions from rent for property tax paid, vide Action for use and occupation-Payment, ante, p. 312.

Action for rent. Defence. Readiness to pay on the land.] It is a good defence in an action of debt for rent, that the defendant was on the premises demised ready to pay the rent at the time it became due, but the plaintiff was not there to receive it. Crouch v. Fastolfe, T. Raym. 418; see also Tinckler v. Prentice, 4 Taunt. 549. It was held bad in an action against the lessee on an express covenant to pay the rent. Haldane v. Johnson, 8 Exch. 689 ; 22 L. J., Ex. 264. But the defence would seem to be good in an action against an assignee of the lease, on a covenant to pay the rent, for such action is founded solely on privity of estate, and would therefore fall within the principle of Crouch v. Fastolfe, supra; see per cur. 8 Exch. 694, 695 ; 22 L. J., Ex. 265.

Action for rent. Defence. Statute of Limitations.] It has been decided that, where the demise is by indenture, the action for rent is now limited, by 3 & 4 Will. 4, c. 42, s. 3, to 20 years, and not, by 3 & 4 Will. 4, c. 27, s. 42, to 6 years only. See these statutes and the cases decided thereon, ante, p. 638, et seq.

Action for rent. Defence. Fraud. It seems that fraud will not avoid a contract whereby an estate in land has passed to the defendant. Feret v. Hill, 15 C. B. 207; 23 L. J., C. P. 185. It is a good equitable defence that plaintiff had, to his knowledge, no title to part of the land he purported to demise. Mostyn v. W. Mostyn Coal & Iron Co., 1 C. P. D. 145.

Breach of covenant not to assign, &c.] On a covenant “not to assign, transfer, set over, or otherwise do or put away the indenture of demise, or the premises hereby demised, or any part thereof,” it has been held that an underlease is no evidence of a breach, but that an assignment of the whole term must be proved. Crusoe d. Blencowe v. Bugby, 3 Wils. 234 ; see 1 Smith's Lead. Cas. 8th ed. 63. But, where the proviso was "not to set, let, or assign over the demised premises, or any part thereof,” an underlease was considered to be within the terms of the proviso. Roe d. Gregson v. Harrison, 2 T. R. 425 ; and, where a lease contained a proviso for re-entry in case the lessee “should demise, lease, grant, or let the premises, or any part thereof, or convey, alien, assign, or set over the indenture, or his estate therein, or any part thereof, for all or any part of the term ;” it was held, that proof that the lessee had entered into partnership with A., and agreed that he should have the use a back-room and other parts of the premises exclusively, was evidence of a forfeiture. Roe d. Dingley v. Sales, 1 M. & S. 297. An assignment by an assignee of a lease to his co-assignee is a breach of a covenant not to assign. Varley v. Coppard, L. R., 7 C. P. 505. But see hereon Bristol, Cor. of v. Westcott, 12 Ch. D. 461, 465, per M. R. Where a lease is granted to partners, B. & H., it is no breach of a covenant, not “to part with the possession" of the premises, for H. to give up possession thereof to B. S.C., C. A. Taking a lodger is not a breach of a covenant not to underlet the house. Doe d. Pitt v. Laming, 4 Camp. 77; unless there be a distinct agreement for exclusive occupation of particular rooms. Greenslade v. Tap scott, 1 C. M. & R. 59, per Parke, B. See further as to the nature of 3 lodger's occupation, sub tit. Action for Illegal Distress, post.

On a covenant “not to let, assign, transfer, or otherwise part with the premises demised, or the lease," depositing the lease as a security is no breach. Doe d. Pitt v. Hogg, 4 'D. & Ry. 226 ; Doe d. Pitt v. Laming, Ry. & M. 36. A lease contained a stipulation that for every acre, and so in proportion for a less quantity, of the land which the lessee should " suffer to be occupied” by any other person without the consent of the landlord, an additional rent should be paid ; and the tenant undertook to “use, occupy," dress and manure the land according to the custom of the country. The tenant, without the consent of the landlord, suffered other persons to use small portions of the land for the purpose of raising a potato crop, and it was proved to be the custom of the country for farmers to pursue

that course: it was held, that the landlord was entitled to the additional rent, this being an occupation of the land by other persons. Greenslade v. Tar scott, supra. The lessee of a theatre, under a covenant not to grant, assign, or dispose of stalls or boxes“ for a longer period than one year or season, let a box for a year, and then let it to another person in reversion for one year, commencing on a day certain in the following year or "such subsequent day during the year on which the theatre may be opened;" this was held to be no breach. Croft v. Lumley, 6 H. L. C. 672 ; 27 L. J., Q. B. 321.

A compulsory assignment by law is not a breach of a covenant not to assign. Thus the sale of a lease under a bona fide execution against the lessee is not a forfeiture of a condition not to assign. Doe d. Mitchenson ! Carter, 8 T. R. 57. But if the tenant give a warrant of attorney to his creditor, for the express purpose of enabling him to take the lease in execution, it will be a fraud, and a breach of the condition. S. C. Id. 300. So, an assignment under a commission of bankruptcy was no breach of a covenant not to assign. Doe d. Goodbehere v. Bevan, 3 M. & S. 353. But, an assignment of the whole of the debtor's personal property, registered under the Bankruptcy Act, 1861, s. 192, was a breach of the covenant

. Holland y. Cole, 1 H. & C. 67 ; 31 L. J., Éx. 481 ; and see Doe d. Cheere T. Smith, 5 Taunt. 795. An assignment, operating as an act of bankruptcy, and therefore void, will not be a breach of the covenant. Doe d. Lloyd v. Powell, 5 B. & C. 308. Where the covenant binds the lessee “and his assigns” not to assign over ithout licence, the compulsory assignment, by bankruptcy, will not discharge the covenant in the liands of subsequent voluntary assignees. See Winter v. Dumergue, 14 W. R. 281, M. T. 1865, C. P.; S. C. in Ex. Ch., Id. 699, E. T. 1866. So, although the devolution on an executor is not a breach of the covenant, yet if executors are named therein, the executor cannot assign without licence. Roe d. Gregson v. Harrison, 2 T. R. 425. Whether a devise by will is a breach of a covenant not to assign seems to be an unsettled question : Shep. Touch. 144. Fox v. Swann, Styles, 482 ; Crusoe d. Blencowe v. Bugby, 3 Wils. 237; Doe d. Goodbehere v. Bevan, 3 M. & S. 361; Doe d. Evans v. Evans, 9 Ad. & E. 719.

A covenant not to assign, where the assigns are named, binds the assignee of the lessee, although the assignment was made without the required licence; Williams v. Earle, L. R., 3 Q. B. 739 ; but it is only the assignee of the whole term that is bound, and if the lessee parts with the possession of the premises to A. under a licence to assign to A., but the assignment is never perfected, A. commits no forfeiture by assigning and giving up possession to B. without licence. West v. Dorb, L. R., 4 Q. B. 634 ; Ex. Ch., L. R. 5 Q. B. 460.

Breach of Covenant as to Trade on Premises. 649 A covenant not to assign without the consent of the lessor,“ such consent not being arbitrarily withheld,” does not amount to a covenant by the lessor, but qualifies the lessee's covenant, so that if the lessor arbitrarily withhold his consent, the lessee may assign without any breach of covenant. Sear v. House Property & Investment Soc., 16 Ch. D. 387; Treloar v. Bigge, L. R., 9 Ex. 147. It seems that a refusal “upon advice,” though without stating the grounds, is not “arbitrary," and that to bé such, it must be “unfair and unreasonable.” S. C. Id. 155, per Kelly, C. B., and Pollock, B. So where consent was not to be withheld from assignment “to any responsible and respectable person,” an assignment to such a person is no breach. Hyde v. Iarden, 3 Ex. D. 72, C. A. Where a lease contains al condition against sub-letting, &c., without the lessor's consent, and a sublease is granted with such consent to B., B. is under no restriction as to parting with his possession of the land so demised to him. Williamson v. Williamson, L. R., 9 Ch. 729.

To prove the breach of a covenant not to assign or underlet, Ld. Alvanley held it to be primâ facie sufficient to show that a stranger was in possession of the premises, apparently as a tenant, and that on inquiry such stranger said he rented the house. Doe d. Hindly v. Rickarby, 5 Esp. 4. But on a covenant“not to assign, set over, or otherwise let," Ld. Elsenborough held that evidence that a stranger was in possession of the premises, with his name on the door, and that he said he had taken the premises from another stranger, was not sufficient; for non constat that the party in possession was not a tortious intruder. Doe v. Payne, 1 Stark. 86. According to Doe d. Morris v. Williams, 6 B. & C. 41, ante, p. 645, mere possession would seeni to be evidence of an assignment.

The measure of damages in an action for a breach of a covenant not to assign, &c., is such a sum of money as will put the plaintiff in the same position as if the covenant had not been broken, and the plaintiff had retained the liability of the defendant instead of an inferior liability. Williams v. Earle, ante, p. 648. As a right of re-entry is commonly annexed to this covenant, its effect is more likely to come into question in an action for the recovery of land than in an action of covenant.

Breach of covenant as to trade on premises.] A covenant not to use a building as a public-house for the sale of beer, wine, malt liquors or spirits,” Pearse v. Coats, L. R., 2 Eq. 689 ; or “as a beerhouse, inn, or public-house for the sale of spirituous liquors,” L. & N. W. Ry. Co., v. Garnett, L. R., 9 Eq. 26 ; Holt v. Collyer, 16 Ch. D. 718 ; is not broken by the sale of beer by retail under a licence “ not to be drunk on the premises," for “ beerhouse" means a house for the sale of beer to be consumed on the premises, S. CC. Nor is a covenant entered into in 1854, that “the trade or calling of an hotel or tavern keeper, publican, or beer shop keeper, or seller by retail of wine, beer, spirits, or spirituous liquors," should not be carried on on the premises, broken by the sale of wine in bottle by a grocer in the ordinary course of his trade ; for the covenant is directed against the trade of a gin palace, and not that of a wine merchant. Jones v. Bone, L. R., 9 Eq. 674. But, where the covenant was not to use the building, " as an inn, public-house or tap-room, or for the sale of spirituous liquors or ale or beer,” it was held that although the covenant did not prevent the sale of wine, it extended to the sale by a grocer of spirituous liquors in bottle. Fielden v. Slater, L. R. 7 Eq. 523. So a covenant not to use the premises “as a beershop or public-house,” is broken by the sale by a grocer of beer not to be consumed on the premises, for “ beer shop” means any place where beer is sold. S. Albans, Bp. of, v. Battersby, 3 Q. B. D. 359 ; accord. L. & Suburban Land & Building Co. v. Field, 16 Ch. D. 645, C. A.

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