ments and if he choose to stipulate for 51. or 50l. additional rent upon every acre of furze broken up, or for any given sum of money upon every load of wood cut and stubbed up, there seems nothing irrational in such a contract (a). The court of chancery will relieve against forfeiture under a covenant for non-payment of rent: but not where the recovery in ejectment was also upon breach of other covenants (b). Equity will likewise relieve against a forfeiture incurred by breach of a covenant to lay out a specific sum in repairs in a given time (c). Where articles contain covenants for the performance of several things, and then one large sum is stated at the end to be paid upon breach of performance, that must be considered as a penalty. But where it is agreed that if a party do such a particular thing such a sum shall be paid by him, there the sum stated may be treated as liquidated damages. It is therefore clear, that where the precise sum is not the essence of the agreement, the quantum of the damages may be assessed by the jury; but where the precise sum is fixed and agreed upon between the parties, that very sum is the ascertained damage, and the jury are confined to it (d). Thus, where there is a clause of nomine pœnæ in a lease to a tenant to prevent his breaking up and ploughing old pasture ground, the intention thereof being to give the landlord some compensation for the damage he has sustained from the nature of his land being altered, the whole nomine pœnæ shall be paid, and not at the rate of 51. per cent. only for the rent reserved (e). Where a conveyance of land is void, so as no estate passes, all dependent covenants are void also; otherwise of covenants independent (ƒ). For a lease must either be good or bad in its creation. Therefore, where it was expressly found, that a covenant in a lease, under a power requiring the insertion of "usual covenants," was unusual; the question was, Whether that circumstance avoided the lease itself, or only that particular covenant: and it was observed that the party had no power to lease at all, unless in the form prescribed; which became a condition precedent. It being manifest that the lease was not made pursuant to the power, it was void in its creation, and the reversioner had a right to take advantage (g). If tenant for a term of years lease for a less term and assign his (a) Astley v. Weldon. 2 Bos. & Pul. 346351. (b) Wadman v. Calcraft. 10 Ves. 67. Davis West. 12 Ves. 475. (c) Saunders v. Pope. 12 Ves. 282.; but see 16 Ves. 406. T (d) Lowe v. Newsham Peers. 4 Burr. 2225-9. (e) Aylet v. Dodd. 2. Atk. 238-9. reversion, and the assignee take a conveyance of the fee, by which his former reversionary interest is merged, the covenants incident to that reversionary interest are thereby extinguished (a). (a) Webb v. Russell. 3 T. R. 393 CHAPTER XI. Of Assignments and Under-Leases. And in what cases Assignees are bound by Covenants, or may make advantage of them; whether the Assignment or Under Lease be absolute or by way of Mortgage.. A N assignment is the transferring and setting over to another some right, title or interest in things, in which a third person, not a party to the assignment, has a concern and interest (a). [Every one therefore who has an estate or interest in lands and tenements, may assign it (b): as tenant for life, for years, &c. But a tenant at will, or sufferance, cannot assign, it is conceived, for reasons before mentioned.] So the interest or estate that a man hath by extent, is assignable from man to man at pleasure (c). So, an annuity may be demised by way of assignment: and an office in certain cases may be assigned. And every one who has a present and certain estate or interest in things which lie in grant, may assign; as in a rent common, advowson, &c. (b). Though the interest be future; As a term for years to commence in futuro; for the interest is vested in præsenti, though it does not take effect till a future time (b). So a possibility of a term is assignable in equity for a good consideration, though not so at law: and though the assignment of a contingent interest, which a husband has in right of his wife, or the possibility of a term, is not strictly good by way of assignment, yet it will operate as an agreement where there is a valuable consideration; but it must be an assignment of that particular thing, and not rest only in intention and construction of words in a covenant (d). So, a lessee for years of the crown may assign his term, though he is ousted by a stranger (e): for the reversion being in the crown, (a) Bac. Abr. tit. Assignment. (d) Theobalds v. Duffoy. 10 Mod. 102. Duke of Chandos v. Talbot. 2 P. Wms. 600-8. (e) Wyngate v. Marke. Cro. Eliz. 275 he cannot be out of possession but at his pleasure; but ordinarily a lessee cannot assign his term if an actual ouster had taken place, till he re-enter (a). A power, where it is coupled with an interest, may be assigned, though a bare power is not assignable; therefore if a lease be made with an exception of the trees, and a power be reserved to the lessor to enter and cut them down, he may assign this power to another person; but if it be not properly pursued, the lessee may maintain trespass both against the lessor and his assignee (b). But generally a chose in action, bare right, or possibility cannot be assigned; and where it is otherwise it arises from the enactment of some statute, or the construction of a court of equity. As a right is not assignable, if the conuzee of a statute sue an extent, and a liberate is returned, yet if he suffer the conuzor to keep possession, he cannot assign the lands; for his possession under the liberate is by his own entry turned to a right (c). But the king by virtue of his prerogative may assign a chose in action, and the assignee may sue either in his own name or in the king's (d). Yet if the king grant a chose in action to another, as he may, his grantee cannot assign it to another (e). A. a copyholder covenants to assign and surrender to B. which covenant is presented to the homage; but before any surrender B. assigns his interest to C. to whom A. surrenders; C. has a right to be admitted on payment of a fine for his own admittance only: for all the lord has a right to require is to have a tenant, and a private agreement like this, not followed up by a surrender of the estate, cannot give the lord of the manor a right to any fine (ƒ). If a termor for years make a lease for a time exceeding his interest, it shall operate as an assignment (g). An assignment, as contradistinguished from an under-lease, signifies a parting with the whole term; and when the whole term is made over by the lessee, although in the deed by which that is done, the rent, and a power of re-entry for non-payment, are reserved to him, and not to the original lessor, yet this is an assignment and not an under-lease; and in such case, the original lessor or his assignee of the reversion, may sue or be sued on the respective covenants in the original lease, even though new covenants are introduced in the assignment (g). (a) Bruerton v. Rainsford. Cro. Eliz. If. 2 T. R. 484. (f) Hicks v. Downing. 1 Ld. Raym. 99. (g) Poultney v. Holmes. I Stan. 405. s. v. Palmer v. Edwards. Doug. 187. in notis. So, if a lessee for three years assign his term for four years, or demises the premises for four years, he does not thereby gain any tortious reversion, but it amounts to an assignment of his interest (a). An assignment is usually made by the words "grant, assign, and set over;" but no particular expressions are necessary for the purpose, provided the intention of the parties is sufficiently explained. No consideration need be expressed in an assignment, for the assignees being subject to the payment of the rent reserved by the lease, is held to be a sufficient consideration (b). An assignment must, by the statute of Frauds, be in writing (c), and a parol assignment of a lease from year to year, granted by parol, is void (d). An assignee of a lease, to shew his interest in the premises, is bound to prove the execution of the lease, and all mesne assignments (e). If a trader before before bankruptcy deposits a lease as a security for money, but no mortgage or assignment of it then takes place, the assignees may recover it: it conferring no legal title (ƒ). The party assigning is called the assignor, and he to whom the assignment is made, the assignee. The proper covenants on the part of the assignor are, that the indenture of lease is good in law; that he has power to assign; for quiet enjoyment; and for further assurance. The proper covenants on the part of the assignee are that he will pay the rent, or perform the services, as the case may be; and also perform the covenants contained in the indenture of lease, or save harmless the assignor therefrom. Assignees are in fact, or in law.-Under the word "assigns," the assignee of an assignee in perpetuum, the heir of an assignee, or assignee of an heir shall take. So, if a man covenant with another, "his executors and assigns," the assignee of an assignee, and his executors, and the assignee of an executor or administrator of every assignee, are included and shall have covenant (g). It seems that an action will not lie by an assignor against an assignee, for he has no residuary interest (b). In leases, the lessee being a party to the original contract, continues always liable, notwithstanding any assignment (i). Therefore covenant will lie against a lessee for years on an express covenant, as to repair, pay rent, &c. notwithstanding he has assigned (a) Poultney v. Holmes. I Stan. 405. 1. v. Palmer v. Edwards. Doug. 187. in notis. (b) Noy. Max. 92. Barker v. Keate. I Mod. 263. S. C. 2 Mod. 252. (c) 29 Ch. 2. c. 3. (d) Botting v. Martin. 1 Camp. 317-318. (e) Crosby v. Percy. Ibid. 303. (f) Doe d. Maslin v. Roe. 5 Esp. 105. (g) Com. Dig. tit. Assignment. (B.) Co. Lit. 384. b. (b) Hicks v. Downing. 1 Ld. Raym..99 S. C. 2 Salk. 10. (i) Eaton v. Jaques. Doug. 456-60. his term and the lessor has accepted rent from the assignee.-But an action of debt will not lie after acceptance of rent (a). So, the executor of a lessee is liable to the grantee of the reversion en such covenants; though the lessee may have assigned his term and the grantee have accepted rent of the assignee (b). For no assignment nor acceptance of the rent by the hands of the assignee shall take from him the advantage of suing him or his executors upon an express covenant; no more than if a lessee had obliged himself in an obligation to pay his rent, his assignment over of his term, and the acceptance of the rent by the lessor of the assignee, shall not take from him the advantage of the obligation (c). For the personal representative of a lessee for years is his assignee, and a covenant to repair runs with the land, as it is to be performed on it, and therefore binds the assignee (d). So with respect to a covenant to make further assurance (e). So, if there is a covenant which runs with the land, and the lessee assigns over, and the assignee dies intestate, the lessor may have covenant against the administrator of the assignee and declare against him as assignee ; for such covenants bind those who come in by act of law, as well as by act of the parties (ƒ). Though all the estate of the lessee is assigned by Act of Parliament, if there are no words of discharge the lessee's executor is still liable to covenant for the rent (g). Where there is a bond for the performance of the covenants in a lease, if the lessee assigns the lease, he may likewise assign the bond: but this must be before any of the covenants are broken; for if any of the covenants are broken, and the lessee afterwards assigns the lease and bond, and the assignee puts the bond in suit for those breaches, it has been held to be maintenance (b). An assignee must take the thing assigned, subject to all the equity to which the original party was subject (i). The assignee of a term is bound, therefore, to perform all the covenants which are annexed to the estate; for when a covenant relates to and is to operate on a thing in being, parcel of the demise, the thing to be done by force of the covenant is, as it were, annexed to the thing demised, and shall go with the land, and bind the assignee in the performance, though not named: for the assignee, by the acceptance of the possession of the land, makes himself subject to all the cove (a) Barnard v. Godscall. Cro. Jac. 309.1 Glover v. Cope. 4 Mod. 81. Marsh v. Brace. Cro. Jac. 334. (6) Brett v. Cumberland. Cro. Jac. 522. Smith v. Arnold. 3 Salk. 5. (c) Bachelour v. Gage. Cro. Car. 188. (d) Tilney v. Norris. 1 Ld. Raym. 553. (g) Bac. Abr. tit. Covenant. (E. 4. n.) (i) Peacock v. Rhodes. Doug, 633-6. |