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down, and which, equally with the proposition stated in Soprani v. Skurro,(8) will require modification, if the recent decision of the Court of Queen's Bench be correct. We may also notice the case of Wilson v. Woolfryes,(h) where non est factum was pleaded to a declaration in covenant, alleging that A., B., C., and D. by indenture demised, and it appearing on production of the demised part that two of these four alone executed the lease, the variance was held fatal, and the plaintiff's were nonsuited. Lastly, we may remark, that if the performance of any particular covenant by the lessee were made expressly dependent upon the execution of the lease by the lessor, it seems clear that the last-named party could not sue upon that covenant without having previously executed the lease, for to such a case the principle of the decision in Glazebrook v. Woodrow,(i) would be applicable.
28 b. Where there has been an assignment of the reversion *the [ *23]
grantor retains his right of action against a tenant for rent accrued due,(b) or breach of covenants,(c) committed previously thereto, though for a breach of a covenant running with the land subsequent to the assignment the assignee must sue ;(d) and by the grant of the reversion in part of an estate such covenants become apportioned, and the grantor may still sue in respect of his residue of such estate,(e) though a condition, being in the nature of a penalty or forfeiture and entire, cannot be apportioned by the act of the parties.(8) The right also of suing on covenants personal to the covenantor, and not annexed to the estate, remains vested in him after an assignment of the reversion.(h)
29. Where several parties are interested in the demised premises, their joinder or severance must in general be determined by considering whether their interest is in its nature joint or several, and whether there be an express contract by the tenant with them jointly; so that where a purchaser occupied premises pursuant to certain conditions of sale, and paid interest on the purchase money “ as and for rent," but the vendors had no common legal interest in any portion of such premises, and there was no proof of any joint contract with them either express or implied; it was held that they could [ *24]
not *join in an action for use and occupation.(i) Where the rever
sion in lands leased to defendant was conveyed to A. and B., and the heirs of B., in trust for A. and his heirs, and A. alone sued defendant for breach of a covenant to repair; it was held, on general demurrer, that such covenant was, by operation of law, with A. and B. jointly as assignees of the reversion, and that A. who showed in his declaration a joint title, ought to have averred the death of B., which could not be intended in order to support the declaration.(k)
(g) Yelv. 18, cited Com. Dig. Covenant (F.), where it is laid down broadly that non. execution by the lessor renders void the covenants in the lease. (h) 6 M. & S. 341.
(i) 8 T. R. 366, cited 2 B. & Ad. 831, 832.u (b) The remedy by distress is of course determined, for this is incident to the reversion 2 Bla. Com. 42.
(c) Midgley v. Lovelace, Carth. 289. (d) Thursby v. Plant, 1 Wms. Saund. 241 b, n. (6,) ad finem. (e) Twynman v. Pickard, 2 B. & Ald. 105. 112. (g) Per Bayley and Holroyd, JJ., 2 B. & Ald. 109, 110. 112; Dumpor's case, 4 Co. 119 b.
(h) Harper v. Burgh, 2 Lev. 206 ; Middlemore v. Coodale, Cro. Car. 503. See Beely v. Parry, 3 Lev. 154. (i) Seaton v. Booth, 4 A. & E. 528.
*Eng. Com. Law Reps. 22. "Id. 31.
30. Joint-tenants being seised per mie and per tout, and deriving by one and the same title must sue jointly on their joint lease, and they must joint in debt or in an avowry for rent.(?) The effect of such a joint lease is, that each demises his own share,(m) and each may put an end to that demise so far as it operates upon his own share, whether his companions will join with him in putting an end to the whole lease or not ;(n) and in the case of a joint demise by joint tenants, upon a tenancy from year to year, it is laid down that the true character of the tenancy is this, not that the tenant holds of each the share of each so long as he and each shall please, but that he holds the whole of all so long as he and all shall please, and as soon as any one of the joint tenants gives a notice to quit, purporting to be given on behalf of all *he effectually puts an end to that tenancy. The tenant has a right upon such a notice to give up the whole,
[ *25] and unless he comes to a new arrangement with the other joint tenants as to their shares, he is compellable so to do.(0) A joint tenant may also make a separate lease of his share either to a companion or to a stranger,(p) before doing which he should sever the tenancy ;(9) and he may recover in ejectment on his separate demise, for such demise operates as a severance of the tenancy.(r) An ejectment also lies by one joint tenant, coparcener, or tenant in common, against his companion on actual ouster.(3)
31. Coparceners being connected together by unity of interest and title, constituting but one heir, and having but one estate among them, must in general like joint tenants sue jointly, (t) as on a joint lease for years,(u) or in an avowry for rent arrear;(x) and an action for *money had and received is not maintainable by one coparcener against an agent
[ *26] who collected the entire rents of the estate held in coparcenery for his share of such rents.(y) In ejectment by coparceners, the demise may, and it appears ought to be laid by all jointly ;(Z) but if so laid, it cannot be supported as the several demise of one or more of the lessors whose title is
(k) Scott v. Godwin, 1 B. & P. 67.
(n) Per Ld. Tenterden, C. J., Doe d. Aslin v. Summersett, 1 B. & Ad. 140, citing Doe d. Whayman v. Chaplin, 3 Taunt. 120, and Right d. Fisher v. Cuthell, 5 East, 491.
() Per Ld. Tenterden, C. J., Doe d. Aslin v. Summersett, 1 B. & Ad. 140, recognized in Doe d. Kindersley v. Hughes, 7 M. & W.139 ; Alford v. Vickery, 1 C. & Marsh. 280 ;b see Goodtitle d. King v. Woodward, 3 B. & Ald. 689;c Doe d. Elliott v. Hulme, 2 Man. & Ryl. 433.
(p) Bac. Ab. Leases, (I. 5.)
(*) Rue d. Raper v. Lonsdale, 12 East, 39; Doe v. Marsack v. Read, 12 East, 57. 61 ; Doe d. Lulham v. Fenn, 3 Camp. 190.
(8) Woodfall, L. & T. 4th ed. 789.
(u) Selw. N. P. 10th ed. 714.
(z) Selw. N. P. 10th ed. 714, n. (20); Per Littledale, J., Doe d. De Rutzen v. Lewis, 5 A. & E. 289;: Boner v. Juner, 1 Ld. Raymond, 726. See the argument, 3 Camp. 191.
* Eng. Com. Law Reps. 20. bid. 41. cId. 5. dId. 25. Id. 31.
proved at the trial:(a) and in ejectment for breach of a condition in a lease, an opinion was intimated in a recent case, that coparceners to whom the reversion descended should have joined, on the ground that the condition could not in their case be apportioned.(b)
32. Where the parties demising are tenants in common, their joinder or severance in an action against their tenant, will depend on the nature of the thing sued for, and the interest which they have in it.(c) They should therefore join in suing in debt for rent, if reserved entire on their joint lease ;(d) though if there be no joint demise or a separate reservation of
rent to each, there must be separate actions or avowries ;(e) and the [ *27]
*same rule applies in an action for double value, for holding over under the stat. 4 Geo. 2, c. 28.(8) No case appears to have laid it down generally that tenants in common must join in covenant; the utmost that has been established seems to be, that they may join in those actions of covenant which are merely personal, and in which the damages are severable, as on a covenant to repair or to procure the renewal of letterspatent.(h)
33. Ìf, after a joint demise by tenants in common, notice be given to pay the rent in each and equal shares, and such payment be made accordingly, it will be a question for the jury, whether it was the intention of the parties to enter into a new contract of demise, with a separate reservation of rent to each ;(i) but payment of the entire rent to one tenant in common, contrary to express notice from the other, will be no discharge as to the latter.(k) 34. Tenants in common cannot join in a demise in ejectment; and the
reason of this is, that they hold by distinct titles,(l) or by one title [ *28 ] and by several rights ;(m) *and where tenants in common join in a lease it operates as the lease of each for their respective parts.(n) Where, however, one entire rent had been paid by the tenant of trustees of a charity to their common clerk, this was held sufficient to support an ejectment on their joint demise, although the defendant proved that such trustees were appointed at different times, as evidence that they were tenants in common ;(0) and if the thing sued for by tenants in common is in its nature
(a) Doe d. Blight v. Pett, 11 A. & E. 842.1
(b) Doe d. De Rutzen v. Lewis, 5 A. & E. 277. 289 ; but see Doe d. Gill v. Pearson, 6 East, 173.
(c) Ante, s. 7; and see s. 34, ad finem. (d) Com. Dig. Abatement, (E. 10); Midgley v. Lovelace, Carth. 289, where it was held, that devisees, who were tenants in common of the reversion, might join or sever in debt or covenant for rent due under a lease from the devisor; and see 2 Bla. Com. 16th ed. p. 194, n. (10), and Litt. s. 316.
(e) Com. Dig. Abatement, (E. 10); Per Holt, C. J., Martin v. Crompe, 1 Lord Ray. mond, 340; Per Abbott, C. J., Powis v. Smith, 5 B. & Ald. 851.h
(g) Wilkinson v. Hall, 1 Bing. N. C. 713 ;i Cutting v. Derby, 2 W. Bla. 1077.
(h) Per Tindal, C. J., Simpson v. Clayton, 4 Bing. N. C. 781 ; Midgley v. Lovelace, Carth. 289; Kitchen v. Buckley, T. Raymond, 80; S. C. 1 Lev. 109. Ante, p. 8 c, note (9).
(i) Powis v. Smith, 5 B. & Ald. 850. (k) Harrison v. Barnby, 5 T. R. 246.
(1) Doe d. Poole v. Errington, 1 A. & E. 750;' Blackasper's case, cited, Id, 755 ; Litt. s. 311; 2 Bla. Com. 194; Mantle v. Wollington, Cro. Jac. 166; Morris v. Barry, 1 Wils. 1; Moore v. Fursden, 1 Show. 342; Heatherley v. Weston, 2 Wils. 232. (m) Co. Litt. 189, a.
(n) Woodfall, L. & T. 4th ed. 6. (0) Doe d. Clarke v. Grant, 12 East, 221.
(Eng. Com. Law Reps. 39. &Id. 31. ĐId. 7. Id. 27. *Id. 33. 'Id. 28.
entire, as in a quare impedit, or in detitnue for a chattel, they must of necessity join in the action.(P), Covenant lies by tenants in common of a house, for not repairing, against a lessee who, after the demise, but before the breach alleged, became a co-tenant with the plaintiffs in the same house.(1)
35. The rights of the grantee of a reversion seem to have been by no means defined by common law. It was admitted that he would have a right to sue the tenant for the rent which might be reserved, because that was incident to the reversion ;(r) and that covenants in law would also pass with the reversion.(s). But it seems the better opinion, that the assignee of the reversion in the land devised derives his right to sue, on express covenants contained in the lease, from the stat. 32 H. 8, *c. 34, and not from the common law.(t) The operation of this statute,
[ *29] which gives to the assignee the same remedy by action of covenant as the lessor possessed, (u) is, however, confined to such covenants as run with the land ;(x) and for breach of these, not only the assignee of the entire reversion, but also the assignee of part of the reversion, as of the reversion for life, or years, may sue.(y) The assignee, however, of the entire reversion in part only of the estate, though he may sue for breach of covenants(z) cannot enter for a condition broken; because the latter cannot be apportioned by the act of the lessor.(a)
36. Without attempting to enumerate the various covenants which have been held to run with the land, we may refer to one recent case in which A. and B. (his wife), being seised of one undivided moiety of certain premises in right of the wife, and C., being seised of the other moiety, jointly demised to D., who covenanted with A. and C. to repair; on this covenant, it seems that the assignee of the reversion could not sue ; at all events *he could not do so without averring in the declaration that the breach occurred in the lifetime of the wife.(b).
[* 30 ] 37. The case of the devisee of land being included in that of the assignee, falls within the statute :(c) and in like manner, the remainder-man may sue in covenant on a lease granted by tenant for life, in pursuance of a leasing power in testator's will; for the reinainder-man, though not assignee of the lessor, is assignee of the devisor, from whom, as creating the power,
(0) Bac. Ab. Joint Tenants, (K.); Co. Litt. 137, b. (9) Yates v. Cole, 2 B. & B. 660.m
(r) Post, s. 57. (8) Coote, L. & T. 314; Woodfall, L. & T. 4th ed. 168; Harper v. Burgh, 2 Lev. 206 ; Per Bayley, J., Vyvyan v. Arthur, 1 B. & C. 414.n
(t) Thursby v. Plant, 1 Wms. Saund. 240, n. (3), and n. (0), 5th ed. ; Co. Litt. 215, a.; 3 Bla. Com. 158; and see note to Spencer's case, Smith's Leading cases, Vol. I. Quære. Whether the stat. 32 Hen. 8, c. 34, extends to leases not under seal. Brydges v. Lewis, 3 Q. B. 603. See 7 & 8 Vict. c. 76, s. 4, and 8 & 9 Vict. c. 106, s. 3.
(u) 32 H. 8, c. 34, s. 1. See Pyot v. Lady St. John, Cro. Jac. 329 ; Collins v. Harding, Cro. Eliz, 606. 622.
(x) Spencer's case, 5 Co. 16, ad finem ; 3 Bla. Com. 16th ed. 158, n. (10). (y) Co. Litt. 215, a.; Matures v. Westwood, Cro. Eliz. 599, 617; Kidwelly v. Brand, 1 Plow. 69; Bac. Ab. Covenant, (E. 5); Attoe v. Hemmings, 2 Bulstr. 281 ; Burton v. Barclay, 7 Bing. 745.
(z) Twynam v. Pickard, 2 B. & Ald. 105. (a) Co. Litt. 215, a.; Dumpor's case, 4 Co. 119, b. ; Pain v. Mallory, Cro. Eliz. 832.
(6) Wootton v. Steffenoni, 12 M. & W. 129. 184; Fryer v. Coombs, 4 P. & D. 119, note. See Harrold v. Whittaker, Q. B., May 26, 1846 ; L. T., vol. vii. p.
280. (c) 3 Bla. Com. 16th ed. 158, n. (10); Sacheverell v. Froggatt, 2 Saund. 367 ; Roe d Bamford v. Hayley, 12 East, 464. 466; Woodfall, L. & T. 4th ed. 193.
Eng. Com. Law Reps. 5. nId. 8. "Id. 43.
the lease must be considered to emanate.(d) So, where plaintiff claimed as mortgagee for a term demised under a power to mortgage, given by testator's will to his executors, and defendant held under a lease from the tenant for life, executed in pursuance of a leasing power in the same will, but posterior to a grant by such tenant for ninety-nine years out of his life estate ; it was held, that the demise to plaintiff must operate as if created by the will, and therefore override the grant for ninety-nine years; that the lease (supposing the leasing power not to be suspended by the grant) would in like manner override it, in any case not affecting the lessee's interest ; and, as a consequence of the preceding, that the mortgagee was entitled to sue the lessee of the tenant for life in covenant, as assignee of the reversion.(e)
38. It must be borne in mind that the covenants, being *incident [ *31 ]
to the reversion were, prior to the recent Statutes 7 & 8 Vict. c. 76, and 8 & 9 Vict. c. 106, extinguished by the merger of the particular reversion to which they were incident,(f) but now by s. 9 of the last-mentioned Act when the reversion expectant on a lease made either before or after the passing of that Act of any tenements or hereditaments shall, after the 1st of October 1845, be surrendered or merge, the estate which shall for the time being confer, as against the tenant under the same lease, the next vested right to the same tenements or hereditaments, shall to the extent, and for the purpose of preserving such incidents to and obligations on the same reversion as but for the surrender and merger thereof would have subsisted, be deemed the reversion expectant on the same lease.
39. Since the covenants in the lease are incident to the reversion, it follows, in cases to which the above statute does not apply, that the assignee of the reversion cannot maintain covenant, unless he is assignee of that particular reversion to which the covenants in the instrument declared on are annexed :(g) and therefore the devisee in remainder cannot sue on the covenants annexed to the reversion expectant on a mere lease at will from testator, for the tenancy thereby created was determined by the lessor's death.(h) In the case of an under-tenancy, however, the stat. 4 Geo. 2, c.
28, s. 6, provided that the chief lease might be *surrendered and [ *32]
a new one taken, without a surrender of the underleases, and that the rights and remedies of all parties should be the same as if there had been no such surrender.(i)
40. The assignee cannot as a general rule sue for a breach of covenant anterior to the assignment; though, if there be a continuing breach, as of a covenant to repair, he may sue after notice, notwithstanding the premises were out of repair before his particular estate commenced. But where a lessee, who had covenanted to repair, held on after the expiration of his
(d) Isherwood v. Oldknow, 3 M. & S. 382; and per Le Blanc, J., Id. 401, 402.
, 3 T. R. 393; Burton v. Barclay, 7 Bing. 745;9 Wootley v. Gregory, 2 Y. & J. 536; Thorn v. Woolcombe, 3 B. & Ad. 586;" Sturgeon v. Wingfield, 15 L. J., N. S., Ex. 212.
(g) Per Lord Abinger, C. B., Cardwell v. Lucas, 2 M. & W.111.
() See Doe d. Palk v. Marchetti, 1 B. & Ad. 715. 721 ;s Sturgeon v. Wingfield, 15 L. J., N. S., Ex. 212; Lewis v. Ridge, Cro. Eliz. 863; Flight v. Bentley, 7 Sim. 149.
pEng. Com. Law Reps. 33. Id. 20. Id. 23. Id. 20.