cannot be a good bar unless it shews that the premises were of no value. Rubery v. Stevens &c. 4 Barn. & Adol. 241; 24 Eng. Com. Law Rep. 50.

19. At what time a breach of the covenant must happen to enable an assignee to sue for such breach; which of the successive assignees may sue, and which covenantor may be sued therefor.

Covenant does not lie for an assignee upon a breach done before his time. Com. Dig. Covenant B 3; Bac. Abr. Covenant E 5, note a. He cannot, for example, maintain an action on a covenant for quiet enjoyment when the eviction, which is the breach relied on, occurred before the assignment to him. Shelton v. Codman &c. 3 Cush. 320.

It was said by Parsons, C. J. to be a general rule, that when a feoffment or demise is made of land, with covenants that run with the land, if the feoffee or lessee assign the land before the covenants are broken, and afterwards they are broken, the assignee only can bring an action of covenant to recover damages, unless the nature of the assignment be such that the assignor is holden to indemnify the assignee against a breach of the covenants by the feoffor or lessor. Bickford v. Page, 2 Mass. 460.

It does not follow that in all cases in which the feoffee or lessee has conveyed the land with warranty, he is entitled to maintain the action. 3 Cush. 222. In one case in New York, where the plaintiff had conveyed with warranty, he recovered for a breach of the covenant with him for quiet enjoyment, though the breach was after his conveyance. Kane v. Sanger, 14 Johns. 93. But there the plaintiff's grantees had given bonds, and mortgaged the premises to him, for the purchase money, so that when the covenant was broken the legal estate was in the plaintiff, not in his former assignees; and while, as it regards the legal estate, he stood as if no conveyance had ever been executed by him, the facts established actual damage to him; for the defendant's breach of covenant deprived the plaintiff of his remedy on the bonds and mortgages.

The opinion of Parsons, C. J. in Bickford v. Page, and the decision in Kane v. Sanger, are entirely consistent with the position that the assignee who sues for damage must be an assignee who has sustained damage. Mere liability as warrantor is not enough. Withy v. Mumford, 5 Cow. 141. The mere circumstance that the plaintiff has conveyed the premises with warranty, and is liable to his grantees for damages, does not entitle him to maintain the action to indemnify himself

for his liability. For a judgment for the plaintiff would be no bar to an action by his assignee. Wheeler v. Sohier, 3 Cush. 222; Wyman v. Ballard, 12 Mass. 304; Griffin v. Fairbrother, 1 Fairf. 81.

The assignee of the grantee may resort to the original grantor for a breach of the covenant happening after the assignment, whether such assignee has a warranty from his immediate grantor or not. The rule is, that the last covenantee who has been evicted, may prosecute any or all of the preceding covenantors till he obtain satisfaction; but that no intermediate covenantee can sue his covenantor till he himself has been compelled to pay damages upon his own covenant. Co. Lit. 3846, 385a; Shep. Touch. 198; Buckhurst's case, 1 Rep. 1; Booth v. Stair &c. 1 Conn. 244; Withy v. Mumford, 5 Cow. 142; Garlock v. Closs, Id. 143, note; Wyman v. Bal. lard, 12 Mass. 306; Le Ray De Chaumont v. Forsythe, 2 Penrose & Watts 514; Suydam v. Jones, 10 Wend. 183, 4; Leary v. Durham, 4 Georgia 593; Redwine v. Brown &c. 10 Id. 317; Hopkins v. Lane, 9 Yerger 83.

Where a second purchaser does not sue on the covenant of the original vendor, but is reimbursed by his immediate vendor, then the latter may recover from the first. Harris v. McEntyre, 1 Hawks. 410; Markland v. Crump, 1 Dev. & Bat. 94; Lee v. Gause, 2 Iredell 446.

20. At what time the breach of a covenant must happen to maintain an action against an assignee for such breach.

The liability of a lessee in respect to covenants which run with the land, rests both upon privity of contract and privity of estate. He cannot divest himself of both by any assignment which he may make. Though his privity of estate ceases when he assigns, yet the privity of contract remains; his assignment absolves him from his covenant to pay rent, no more than it would from a bond conditioned to pay it; an action for breach of that covenant may still be maintained against him or his representatives. Quackenboss v. Clarke, 12 Wend. 557; Walton v. Cronly, 14 Id. 64; Berry v. McMullen, 17 S. & R. 87; Farmers Bank v. Mut. Ass. Soc'y &c. 4 Leigh 84.

The assignee by his acceptance of the estate binds himself to fulfil certain obligations, 4 Leigh 84. As the liability of one sued as assignee rests upon his estate, it is clear that where it is shewn that no estate vested in the defendant, he is not liable as assignee. Quackenboss v. Clarke, 12 Wend. 557; Williams v. Woodward, 2 Id. 487; Berry v. McMullen, 17 S. & R. 87.

Under an absolute assignment, the assignee is liable before he has taken actual possession; for, by the assignment, the title and possessory right pass, and the assignee becomes possessed in law. Werdner v. Foster, 2 Penrose & Watts 26. He is not, however, liable until he has the possession, or right to the possession. Thomas v. Connell, 5 Barr 1. And then he is not personally liable for breaches which have wholly accrued before the assignment; for instance, not for rent due before the assignment. Grescot v. Green, 1 Salk. 199; Churchwardens &c. v. Smith, 3 Burr. 1271; 1 W. Bl. 351; Astor v. Hoyt, 5 Wend. 617.

But there may be a question as to when the breach shall be considered to have happened. A covenant, without any time being specified, such as a covenant to repair, may continue and attach upon the premises in the hands of the assignee. If the covenant be to pay all assessments imposed on the premises, under the authority of government, there may be a continual breach, and the assignee be liable, though the first breach happened before the assignment. Astor v. Hoyt, 5 Wend. 618.

An action may be maintained by a lessor against an assignee of the lease, upon a covenant running with the land, for a cause of action accruing in the time of the assignee, and before an assignment made by him, notwithstanding such assignment took place before the action was brought. Harley v. King, 2 C. M. & R. 22.

When the assignee has assigned, and by such assignment the privity of estate is determined, no suit can be maintained against the assignee for a cause of action arising after such assignment. Taylor v. Shum &c. 1 Bos. & Pul. 23; Walker v. Reeve, 3 Dougl. 19; 26 Eng. Com. Law Rep. 18; Armstrong v. Wheeler, 9 Cow. 88; Wickersham v. Irwin, 2 Harris 111; Walton v. Cronly, 14 Wend. 64.

21. Where the assignments are of separate parcels, or of undivided interests, what right of action exists for or against the assignees.

Where an estate is divided, that is done either so as to pass separate portions to separate owners, or to pass undivided inte5 Barn. & Cress. 479.

rests.

Where a covenant runs with the land, an assignee of a portion of the land is held entitled to the benefit of the covenant. It is so held, notwithstanding what is said in 3 Prest. Abstr. 56, 58; Mr. Preston being opposed by authority no less imposing than his. 2 Sugd. on Vend. 743, pl. 91,2; Dickinson V. Hoomes's adm'r &c. 8 Grat. 406, 7.

If the assignment be of an undivided interest, the assignee is also entitled to the benefit of such a covenant. Van Horne v. Crain, 1 Paige 460.

Analogous rules have been long established in respect to the right of action against an assignee of part. He is liable to an action on every covenant running with the land and affecting such part. Com. Dig., Covenant (C. 3); Wollaston v. Hakewill, 3 Man. & Grang. 322; 42 Eng. Com. Law Rep. 174; Werdner v. Foster, 2 Penrose & Watts 26.

If the entire interest in different parcels passes to separate individuals, a covenant which runs with the land, if divisible in its nature, will attach upon each parcel pro tanto. Shep. Touch. 199; Co. Lit. 385a. The assignee of each part will be answerable for his proportion of any charge upon the land. which was a common burden, and will be exclusively liable for the breach of any covenant which related to that part alone. Astor v. Miller, 2 Paige 78.

Thus, in an action against an assignee of an assignee, for not repairing a house let inter alia, though the defendant was but assignee of parcel of the things demised, there was judgment for the plaintiff; the court saying, "this covenant is dividable, and follows the land," and the "defendant, as assignee, is chargeable by the common law, or by the statute of 32 Hen. 8." Congham v. King, Cro. Car. 221.

So, if the covenant be to pay all assessments imposed on the leasehold premises, under the authority of government, if one half of those premises be assigned by the lessee to A, and the residue to B, each will be answerable for the assessments imposed on his half, but not for assessments on the other half. Astor v. Miller, 2 Paige 78. The covenant is binding on the several assignees, in proportion to the quantity assigned to each. Astor v. Hoyt, 5 Wend. 619.

The assignee of part is liable to be charged for that part, although he has no entire interest in any part, but a partial interest in the whole. Merceron v. Dowson, 5 Barn. & Cress. 479; 11 Eng. Com. Law Rep. 277.

Thus, a lessee having assigned the moiety of the land for the whole term, the lessor maintained debt against the assignee for the moiety of the rent; for the assignee having the entire estate in one moiety of the land, hath privity of estate sufficient to be charged by the lessor for a moiety of the rent. Garnon v. Vernon, 2 Lev. 231.

CHAPTER VIII.

OF THE ACTION ON COVENANTS IN THE CONVEYANCE OF LAND, WHICH ARE BROKEN AT THE INSTANT; AND ON COVENANTS IN THE SALE OF CHATTELS.

1. What is an immediate breach of certain covenants; especially of the covenant of seisin.

If when a grantor covenants that he is seized, he is not seized, or if when he covenants that he has a good right or title to the land, or good right to convey it, he has not such right or title, or if when he covenants against incumbrances there is a subsisting incumbrance, the covenant, in either case, is broken the moment the deed is executed, and the grantee has forthwith a right of action for damages. Greenby &c. v. Wilcocks, 2 Johns. 4; Hamilton v. Wilson, 4 Id. 72; Church v. Gillman, 15 Wend. 664; McCarty v. Leggett, 3 Hill 134; Bingham v. Weiderwax, 1 Comstock 513; Frank v. Voneida &c. 11 S. & R. 112; Chapman v. Holmes, 5 Halsted 30.

It has been said that covenants of seisin and of right to convey are synonymous. 1 Metcalf 455. If they be synonymous they are not converse. A man who is seized in fee has the power to sell, but he may have the power to sell and not be seized. 17 Ohio 59. In Connecticut an administrator may have a power to sell, and yet if he makes a covenant of seisin, when he is not possessed under claim of right, his covenant will be broken. Mitchell v. Hazen, 4 Conn. 513.

A covenant by a grantor that he is seized of the lot described in the deed, is broken if in fact no such lot exists. Bacon v. Lincoln, 4 Cush. 212. And though the land embraced in the deed exists, the covenant may be broken although no eviction has taken place. Pollard v. Dwight, 4 Cranch 430. The rule has been long established, that if one seized of land doth alien it and covenant that he is lawfully seized, when in truth he is not, but some other hath an estate in it before, in this case the covenant is broken as soon as it is made. Shep. Touch. 170; Bender v. Fromberger, 4 Dall. 439; Lot v. Thomas, 1 Pennington 407. A covenant of this nature goes to the title; it is broken when made, if the vendor had not then the lawful title to every part of the property granted. Mott v. Palmer, 1 Comstock 573.