If

they are joint tenants,(d) heirs by gavelkind,(e) or, it seems, co-parceners,(g) they must be jointly sued for breach of contract towards their tenant. tenants in common join in a lease, it operates as the several leases of their several interests; (h) and although tenants in common cannot make a joint lease of the whole of their estate,(i) yet if they join in a lease for years, by indenture, of their several lands, it is the lease of each for their respective parts, and the cross-confirmation of each for the part of the other; and, of course, on their joint covenants in such a lease they must be jointly sued.(k)

163. It is not intended to enumerate the different express covenants which have been held to entail a joint or several liability;(7) but we may observe, that the general words of the first covenant in a lease must be construed to extend to the subsequent covenants, unless *restrained by the nature of the subject;(m) and that a covenant implied by law, as that for [*128]

quiet enjoyment resulting from the word "demise," in a lease, will be joint or several according to the nature of the interest demised;(n) though a covenant cannot be implied from one who has only an equitable interest, and who, in point of law, merely confirmed, by joining in the lease, the demise of the person legally entitled; the latter party must consequently, for breach of such a covenant, be sued alone.(0)

164. The burden as well as the benefit of such covenants as run with the land,(p) and are not personal merely, (q) passes from assignee to assignee of the reversion, by the stat. 32 H. 8, c. 34, the effect of which has been already noticed; and the remarks previously made when considering the rights of the assignee are equally applicable in determining the remedies against him.(r)

165. The heir and devisee of the lessor, though not named, are at common law bound, to the extent of assets descended or devised, by all covenants entered into by the ancestor or devisor, running with the land ;(s) the heir is also bound by express covenants not running with the land, if entered into by the ancestor for himself, *and his heirs ;(f) and the observations already (u) made as to the liability of the heir and [*129] devisee for breach of covenant contained in a lease by the ancestor or devisor, and committed in his lifetime, may here be referred to.

166. The personal representatives of the covenantor and lessor, though

(d) Bac. Ab., Joint Tenants, (K.)

(e) Com. Dig., Abatement, (F. 9.)

(g) Co. Litt. 180, b.; 2 Bla. Com. 188; Selw. N. P. 10th ed. 714, n. (20.) (h) Com. Dig., Estates, (G. 6.)

(i) Heatherley d. Worthington v. Weston, 2 Wils. 232; Mantle v. Wollington, Cro. Jac. 166.

(k) Bac. Ab., Joint Tenants and Tenants in Common, (K.), (H. 1); Com. Dig., Estates, (K. 8); Mantle v. Wollington, Cro. Jac. 166.

(1) Ante, ss. 141-144; Selw. N. P. 10th ed. 455.

(m) Duke of Northumberland v. Errington, 5 T. R. 522; Copland v. Laporte, 3 A. & E. 517.5

(n) Coleman v. Sherwin, 1 Salk. 137.

(0) Smith v. Pocklington, I Cr. & J. 445.

(p) As to what covenants run with the land, see Woodfall, L. & T. 4th ed. 80-82.

(9) Mayho v. Buckhurst, Cro. Jac. 438.

(r) Ante, s. 35.

(8) Bac. Ab., Heir, (D.) and (I); Woodfall, L. & T. 4th ed. 193; Derisley v. Custance,

4 T. R. 75.

not expressly named, are liable at the suit of the covenantee, in their representative character, for all breaches of covenant, whether real or personal, committed during the life of the covenantor, by reason of the privity of contract existing between themselves and the covenantee.(x) They are also liable for breach subsequent to the covenantor's death, of such express covenants in the lease as are not in their nature strictly personal and limited to the life of the covenantor. With respect to covenants in law, it is laid down broadly by some authorities, (y) that upon these the personal representatives are not liable; and it is at all events clear, that a covenant in law cannot be extended beyond the estate which the lessors could lawfully grant; it must also be observed, that all covenants between a lessor and his lessee must be either covenants in law or express covenants, the distinction between which we shall now proceed briefly to consider.

166 a. A covenant in law, properly speaking, is an agreement which the law infers or implies from the use of certain words having a known legal operation in the creation of an estate; so that after they have had their *primary operation in creating the estate, the law gives them a [*130] secondary force by implying an agreement on the part of the grantor to protect and preserve the estate so by those words already created; as if a man by deed demise land for years, covenant lies upon the word “demise," which imports or makes a covenant in law for quiet enjoyment; or if he grant land by feoffiment, covenant will lie upon the word “dedi.” On the other hand, an express covenant is one which results from putting a proper and natural construction upon the words employed by the parties, and the legal effect and operation of such a covenant, the meaning of which has been once ascertained, whether framed in express words or whether it be matter of inference only, is precisely the same. We may add that the term implied covenant" is sometimes used as meaning a covenant of this latter kind, i. e., an express covenant; but it is also used with reference to a covenant which the law itself implies, in which sense it is synonymous with a "covenant in law."(z)

66

166 b. The following cases will serve to illustrate the rules above stated as to the liability of executors and administrators for breach of covenant subsequent to the death of the covenantor. A. B., being tenant for life with a leasing power, by indenture of lease, demised to J. W. (the plaintiff) for ninety-nine years, if three persons, named in the lease, should so long live; this lease, upon the death of the tenant for life, was held to be void, as against the remainder-man, by the judgment of a court of law, on the ground that it was not made in *due conformity with the leasing [*130a] power. The lease contained in it a clause in the following terms, viz.: "And the said A. B., for himself, his heirs, and assigns, the said demised premises, with the appurtenances, under the said J. W., his executors, administrators, and assigns, under the rent, covenants, conditions, exceptions, and agreements before expressed, against all persons whatsoever

(y) Shep. Touch. 178.

(x) Woodfall, L. & T. 4th ed. 598. (z) See the judgment, Williams v. Burrell, 1 C. B. 427, and the cases there cited. Com. Dig. Covenant (C. 1), per Littledale, J., 5 B. & C. 609.r As to 8 & 9 Vict. c. 106, s. 4, ante, s. 52.

Eng. Com. Law Reps. 12,

lawfully claiming the same, shall and will during the said term warrant and defend." It was held that the above clause amounted to an express covenant for quiet enjoyment; that, being an express covenant, it extended to protect the whole term which was purported to be granted by the lease, and consequently that the plaintiff might recover against the executors of A. B. the value of the term, the costs of defending an action of ejectment brought by the remainder-man, and also the sum recovered by him for mesne profits. (a) So, where a fine was levied of a married woman's estate, with a joint power to the husband and wife to declare the uses, which they accordingly declared, in remainder to A., and the husband made a lease with a covenant for quiet possession against any one claiming under him, and A. evicted the tenant; the executors of the husband were held liable in an action on the covenant.(b) But where tenant for life leased for a term, before the expiration of which he died, and the lessee was evicted by the remainder-man, it was held, that no action lay by the lessee against the lessor's executors, on the covenant for quiet enjoyment implied in the word "demise," such covenant being a covenant in law, and in the nature of a warranty during, and not extending *beyond, the lessor's life; (c)

and on a covenant merely personal, it seems, that the executor [*1306]

could not be charged if the breach occurred after the death of the covenantor.(d)

167. A lessee is clearly liable on his express covenants, although broken after an assignment of the term, (e) and acceptance of rent by the landlord from the assignee and in like manner are his personal representatives having assets ;(ƒ) the reason being that, although the privity of estate is destroyed, the privity of contract still continues: but it seems doubtful whether this rule holds in the case of covenants implied by law, which depend on privity of estate, and would, therefore, determine by assigning the estate with the landlord's assent;(g) and in neither case will debt lie after acceptance of rent from the assignee.(h) So, by a grant or assignment of part only of the lessee's estate, the entire privity of contract is not at an end; and the lessee would, it seems, *remain liable on his covenant to pay the entire rent; for he cannot apportion it, (h) as he [*131] might do in an action of debt, after receipt of rent by the landlord from the assignee.(i)

(a) Williams v. Burrell, 1 C. B. 402. (c) Adams v. Gibney, Bing. 656.

(e) Eaton v. Jacques, 2 Dougl. 455. 460; Kemshead, 4 Taunt. 642.

(b) Hurd v. Fletcher, 1 Dougl. 43. (d) Woodfall, L. & T. 4th ed. 599. Chancellor v. Poole, 2 Dougl. 764; Orgill v

(f) Bachelour v. Gage, Cro. Car. 188; Arthur v. Vanderplank, cited, Selw. N. P., 10th ed., 451, n. (r); Hellier v. Casbard, 1 Sid. 266; S. C. 1 Lev. 127; Coghil v. Freelove, 3 Mod. 325; S. C. 2 Vent. 209; Pitcher v. Tovey, 4 Mod. 76.

(g) Semble not, Coote, L. & T. 327; 1 Wms. Saund. 241, n. (5), ad finem; Smith's L. C. Vol. I., note to Spencer's case; Auriol v. Mills, 4 T. R. 98; Bret v. Cumberland, Cro. Jac. 523.

(h) Bret v. Cumberland, Cro. Jac. 522; Barnard v. Godscall, Id. 309; Ludford v. Barber, 1 T. R. 92; and see the cases collected, Selw. N. P. 10th ed. 461, n. (11), Woodfall, L. & T. 4th ed. 171, and Thursby v. Plant, 1 Wms. Saund. 241, n. (5); Marsh v. Brace, Cro. Jac. 334; Auriol v. Mills, 4 T. R. 98; 2 Wms. Saund. 302, n. (5). (h) Stevenson v. Lambard, 2 East, 575.

(i) Broom v. Hore, Cro. Eliz. 633; Ards v. Watkin, Id. 637. 651; Stevenson v. Lambard, 2 East, 580.

Eng. Com. Law Reps. 19.

168. A tenant underletting likewise remains liable on the original agreement of demise, unless a new agreement by the landlord to accept the undertenant in his stead can be established in evidence,(j) or unless the circumstances constitute a valid surrender of the tenant's interest within the Statute of Frauds ;(k) in default of which it seems that the landlord has his remedy ex contractu not only against his own tenant, but against the party occupying, and that he may in such a case waive the trespass, and recover for the actual enjoyment of the land.(7) By the holding over of the subtenant, the tenant himself becomes chargeable :(m) and when B., lessee for a term ending October 11, underlet to C. from year to year, subject to the determination of his own tenancy, and C. held over against the will of the lessee, but finally quitted December 14, B. who had previously distrained for the rent due *October 11, was held liable for the subsequent [*132] period, during which C. retained possession. (n) It would rather seem, however, that there is a distinction between the case of a co-tenant and that of an undertenant, and that where there is a joint tenancy, one joint tenant is not necessarily liable for the wilful holding over of his cotenant, (o) though he would clearly be so if such co-tenant held over with his assent.(p)

169. It seems that the liability of the assignee of lessee, on covenants running with the land, existed at common law prior(g) to the stat. 32 Hen. 8, c. 34, and the following rules respecting his liability have been laid down in the leading case(r) on this subject. First, when the covenant extends to a thing in esse parcel of the demise, the thing to be done by force of the covenant is in some manner annexed and appurtenant to the estate demised, and shall bind the assignee although not expressly named.(s) Hence the usual covenants to pay rent, to repair, &c., run with the land ;(t) and, on such covenants, the assignee of part only of the thing demised is liable,(u) and rent will be apportioned *accordingly,(x) as it also may be in [*133] case of eviction.(y)

170. Secondly, if the covenant relates to a thing not in esse at the time of the demise, but to be done upon the thing demised, it shall bind the

(j) Per Lord Kenyon, C. J., Harding v. Crethorne, 1 Esp. 57, recognized Christy v. Tancred, 7 M. & W. 130, and 9 M. & W. 448; Thomas v. Cook, 2 B. & Ald. 119. See Walls v. Atcheson, 3 Bing. 462; Hall v. Burgess, 5 B. & C. 332;t Grimman v. Legge, 8 B. & C. 324,"

(k) 29 Car. 2, c. 3, s. 3; Thomas v. Cook, 2 B. & Ald. 119.

(1) Per Parke, B., Christy v. Tancred, 7 M. & W. 129.

(m) Harding v. Crethorne, 1 Esp. 57; Ibbs v. Richardson, 9 A. & E. 849;* arg. Christy v. Tancred, 9 M. & W. 443.

(n) Ibbs v. Richardson, 9 A. & E. 849.y

(0) Per Parke, B., and Alderson, B., Hirst v. Horn, 6 M. & W. 396, and Christy v. Tancred, 9 M. & W. 447, 448. See, however, per Parke, B., Christy v. Tancred, 7 M. & W. 129. S. C. in error, 12 M. & W. 316; Per Parke, B., Draper v. Crofts, 15 L. J., N. S. Ex. 92.

(p) 9 M. & W. 438.

(4) Smith's L. C. vol. I., note to Spencer's case; ante, s. 51.

(r) Spencer's case, 5 Coke, 16.

(t) See the cases, Woodfall's L. & T. 4th ed. 80-82.

(s) Ib., 1st Resolution.

(u) Congham v. King, Cro. Car. 221; Com. Dig., Covenant, (C. 3.) See Wollavston Hakewill, 2 Scott, N. R. 615.

(x) Holford v. Hatch, 1 Dougl. 183; Palmer v. Edwards, Id. 187, n.

(y) Stevenson v. Lambard, 2 East, 575.

*Eng. Com. Law Reps. 11. "Id. 15. Id. 36. Id. 36.

assignee if named ;(z) as, if the covenant be to build a new wall upon the land demised;(a) or, generally, if it affect the nature, quality, or value of the thing demised, independently of collateral circumstances, or if it affect the mode of enjoying it.(b)

171. Thirdly, but if the covenant relates to a thing collateral to, and not touching or concerning the thing demised in any sort, there the assignee shall not be bound although named ; (c) as, where the covenant was not to hire persons to work in a mill (about to be erected on the land demised) who were settled in other parishes without a parish certificate. (d)

172. These rules do not apply to a lease of personalty, for with property of that description a covenant does not run, as there is no privity, nor any reversion, but such covenant is merely a chose in action binding the *covenantor and his personal representatives;(e) it has therefore been held that a covenant does not run with rent.(g) But a cove[*134] nant by a lessee of tithes, for himself and his assigns, not to let any of the farmers in the parish have any part of the tithes without the lessor's consent, runs with them and binds the assignee.(h)

173. Subject then to the rules thus briefly stated, we see that, during the continuance of a demise, and after assignment of the term, both the lessee and assignee(i) are liable at the suit of reversioner, and at his election (4) the former being bound by his express covenants through privity of contract, the latter by such covenants as run with the land through privity of estate :(1) indeed the lessor may charge both the lessee and assignee, but he can take out execution against one only.(m) This liability of the assignee, however, is commensurate with the time during which he has an interest in the premises ;(n) it commences when such interest commences, *and is at once determined by his assignment over; for

thereby the privity of estate is destroyed ;(0) and this is equally [*135]

true of the assignee's personal representatives, who are themselves assignees.(p) The reversioner, however, retains his right of suit in respect. of any breach of covenant committed during the continuance of the

(z) Spencer's case, 5 Co. 16, 2d Resolution.

(a) Ib.; Sampson v. Easterly, 9 B. & C. 505, affirmed in error, 6 Bing. 644.

(b) Per Lord Ellenborough, C. J., Mayor of Congleton v. Pattison, 10 East, 135; Cock. son v. Cock, Cro. Jac. 125, ad finem.

(c) Spencer's case, 2d Resolution. See Mayo v. Buckhurst, Cro. Jac. 438.

(d) Mayor of Congleton v. Pattison, 10 East, 130.

(e) Spencer's case, 5 Co. 16, 3d Resolution.

(g) Milnes v. Branch, 5 M. & S. 411. 417.

(h) Bally v. Wells, 3 Wils. 25, discussed 2 Wms. Saund. 304, n. (12). See Brewer v. Hill, 2 Anstr. 412; Dean of Windsor v. Gover, 2 Saund. 302.

(i) The assignee is liable without actual possession, Williams v. Bosanquet, 1 B. & B. 238; Burton v. Barclay, 7 Bing, 745;b Taylor v. Shum, 1 B. & P. 21.

(k) Devereux v. Barlow, 2 Saund. 181; Woodfall, L. & T. 4th ed. 597.

(1) Woodfall, L. & T. 4th ed. 78. 171, 172. As to what is sufficient evidence to render

a party in possession liable as assignee of a lease, see Doe d. Hemmings v. Durnford, 2 Cr. & J. 667.

(m) Woodfall, L. & T. 4th ed. 597.

(n) Burnett v. Lynch, 5 B. & C. 589. 605.

(0) Woodfall, L. & T. 4th ed. 173; Selw. N. P. 10th ed. 488, n. (33); Short v. Kalloway, 11 A. & E. 28;d Paul v. Nurse, 8 B. & C. 486.

(p) Spencer's case, 5 Co. 16, 7th Resolution.

a

Eng. Com. Law Reps. 5. Id. 20. Id. 12. Id. 39. Id. 15.