The Report farther stated, that, notwithstanding it was expressly agreed at the Sale, that the Plaintiffs would not covenant for the Title, the Draft of the Assignment, as prepared by the Defendant, contained on the Plaintiffs' Part Covenants, that they had done no Act to encumber; that notwithstanding any Act by the Plaintiffs, or by Sir William Staines, to the contrary, the Lease was valid; that the Plaintiffs had absolute Authority to assign for quiet Enjoyment, free from all Incumbrances by them or Sir William Staines; (subject only to the Rent and Taxes); and for farther Assurance; with the following Covenant, on the Part of the Defendant: "that "he the said Thomas Morris, his Heirs, Executors, Ad"ministrators, or Assigns, shall and will well and truly pay, perform, fulfil, and keep the Rents, Covenants, " and Agreements in and by the said in Part recited In"denture of Demise or Lease reserved and contained, "and which, on the Lessee's Part, are or ought to be "paid, performed, fulfilled, and kept, for or in respect of "the said Premises, hereby assigned or intended so to "be, or any Part thereof, from and after the 25th Day of "December instant, for and during the Remainder of the "said Term of Fifty-seven Years." The Draft was returned; all the Covenants on the Plaintiffs' Part, except that they had done no Act to encumber, being struck out: but the Covenant of the Defendant to pay the Rent and perform the Covenants being left standing. The Defendant's Solicitor afterwards sent to the Plaintiffs' Solicitor the Assignment engrossed; omitting that Covenant; but not communicating, that he had omitted it. That Omission being observed by the Plaintiffs' Solicitor, he returned the Eugrossment and Draft; insisting, that the Defendant's Covenant should be restored; and the Defendant on the 24th of December, 1807, 1812. STAINES v. MORRIS. 1812. STAINES v. MORRIS. Nov. 11. 1807, tendered the Deed for Execution; as it stood, without that Covenant. The Master stated his Opinion, that the Indenture of Assignment, tendered by the Defendant to the Plaintiffs, for their Execution, was a proper Assignment. To that Report, an Exception was taken by the Plaintiffs. Sir Samuel Romilly, Mr. Raithby, and Mr. Preston, in support of the Exception, cited Pember v. Mathers (a). Co. Litt. 231, a. Litt. S. 667. Shep. Touchst. 177. Shep. Abr. 539. Finch's Law, 109. Mr. Richards, Mr. Hart, and Mr. Hall, for the Master's Report, cited Walker's Case (b); contending, that, if the late Sir William Staines had improvidently taken upon himself an Obligation, the Law did not cast upon him, it did not follow, that in Equity the Assignee was bound to indemnify him in respect of that Obligation. The Lord CHANCELLOR. I take the Circumstances of this Case to be, that there was an original Demise to Clarke, afterwards assigned to Sir William Staines; and by that original Demise the Premises were of course let, yielding and paying the Rent, and performing the Covenants; but beyond that I take it, that there was an express Covenant for Payment of the Rent and Performance of the Covenants, and the usual Covenant on the Part of the Lessor, that the Lessee, paying the Rent, and performing the Covenants, should enjoy the Premises for the Term. Suppose, instead of an Assignment, actually executed by Clarke, the original Lessee, to Sir William Staines, the Question had occurred upon an Agreement between them for the Purchase and Assignment of the Term; and a Bill, filed for the Execution of that Agreement. The Question then would be, what ought to be the Nature, Form and Terms, of the Instrument, by which that Agreement was to be specifically performed. That an form the Co venants, liable during the whole Term, It is clear, that, where a Lessee covenants, that he, Lessee under his Executors, Administrators and Assigns, will pay the express CoveRent, and perform the Covenants, though he parts with nant to pay the the Possession, and though many subsequent Assignments Rent, and perhave taken place, he remains, in the Case of an express Covenant at least, liable during the whole Term. As to an Assignee there are Two Ways of putting it. Assignee is liable during his own Possession is clear: whether he remains liable, after his Possession determines, is a very different Consideration: but the Point in such Case as I have stated, a Bill for the specific Performance of an Agreement to assign, would be, what is the equitable Situation of the original Assignor and the Assignee, taking from him during the Remainder of the Term. a In this Case Sir William Staines would be bound to enter into the ordinary Covenants for the Title; and there is no Instance of an Assignment, drawn with proper Caution, which is not made expressly subject to Payment of the Rent and Performance of the Covenants, on the Part of the Lessee, his Executors, Administrators and Assigns, reserved; for though, if the Assignee should part with the Possession, the Lessor might not be able to recover at Law against that Assignee, yet, if the original Assignor enters notwithstanding Assign ments. Distinction as to Assignee ; though liable during his own Possession. 1812. STAINES V. MORRIS. enters into a Covenant for the Title, and the Assignee takes the Premises, in the Question, as between the Assignor and Assignee, the former has a Right to say to the latter, "you stand as between us in the Situation, in "which I originally stood to the Lessor; and, if he "under the express Covenant resorts to me, you taking "the Premises from me, it is fit, that the Rent, if paid "by me, should be reimbursed to me by you." This produces these Covenants of Indemnity. If therefore this stood upon Agreement, the proper Execution of such an Agreement would be an Assignment by Clarke, covenanting for the Title; and Sir William Staines on the other Hand entering into those Covenants, implied and expressed, which are intended on his Part to be executed, where they are both expressed and implied: an Assignment, not only subject to Payment of Rent and Performance of the Covenants; but the Instrument, executed and accepted by him, containing an express Covenant to pay the Rent and perform the Covenants. Sir William Staines, having accepted the Assignment, dies; and his Executors propose it to Sale. This is not a Case, in which the Court will look at it with reference to the Considerations, that occur, where the original Contract is silent, as to what is to be done on the one Side and the other: but the Vendors bargaining in the Article of Sale, that they will not enter into a Covenant for the Title: the Purchaser upon the Conditions of Sale not bargaining, that by reason of that there shall be any of the usual Covenants on his Part abstracted from the Assignment. I think farther, that this would not alter it: the Executors, as Executors, would not be bound to enter into such a Covenant: but by the express Terms they were not to do so. When the Draft was laid before the Plaintiffs' Solicitor, these these Covenants for Title were struck out. |