Allen v. Wooley

1 Blackf. 148, 1821 Ind. LEXIS 15

Opinion

Scott, J.

Supposing that JYoble intended, by the assignment of the indenture, to grant to the plaintiffs the interest resulting to him by virtue of his agreement with the defendants, it becomes a question whether any thing could pass by such assignment. Our act of assembly, making notes and bonds assignable, is unusually broad; and by giving it as large and liberal a construction as the words would bear, it would probably comprehend some obligations and other instruments, never contemplated by the framers of the statute. (1). But notwithstanding the extent of the provisions, and the latitude of expressio; use of, in that statute, it cannot by a fair construction b apply to the indenture under consideration. The coun%ÍSFthe plaintiffs seem to have been aware of this objection. In ment, the assignment was not supported by the authowty bVthe statute: but much reliance was placed on the circumstdhccjp^ venants real running with the land; and, on this principle, the legality of the assignment was insisted on. The principle her contended for will not be denied; but its application to the case under consideration is clearly inadmissible. As soon as the defendants had entered into possession under a lease from JYoble¡> each party had a transferable estate: the defendants had a term which they could assign; and JYoble had a reversion which he could grant away. But while the defendants continued to hold the term, and JYoble to hold the reversion, there was no transfer of the land to carry the covenants. The reason why covenants, real run with the land, is, because they are, in contemplation of law, attached to the land, and remain with it. Had JYoble,. in this qase, granted the reversion without reserve, the cove-. nants would have passed with the land to the grantee; but the covenants could not pass with the land, unless the land also pass* ed to carry the covenants with it.

Test, for the plaintiffs. Caswell■, for the defendants.

Per Curiam.

The judgment is affirmed, with costs.

Footnotes

(1)

Stat. 1817, p. 232. — Acc. Stat. 1823, p. 329. In Kentucky, where, by statute, bonds and notes for money or property are assignable, an obligation to pay money and do other acts which are neither the payment of money nor property, is held not to be assignable. The Court say that they- cannot suppose the legislature intended, without explicit words, to. communicate to an instrument, containing perhaps fifty stipulations for the performance of other duties, a negotiable quality, because there was "one engagement to pay money, or any species of property. Force's adm’r v. Thomason, 2 Litt. 166. So where the obligation was, to lay out part of a sum of money received from B., In purchasing materials for three pumps, and to discharge the balance by the construction of the pumps, which the defendant was to make for B.; it was held that B.’s assignee could not sue, on the ground that a bond for the performance of personal duties is not assignable. Halbert v. Deering, 4 Litt. 9.

If the covenant be only for the payment of-rent, debt lies by an.assignee of the rent. Thus, in debt for rent, the declaration stated that by an indenture dated, &c., between F. and the defendant, the former demised to the defendant certain premises for 14 years, at the yearly rent of 1001.; that the defendant covenanted to pay the rent; that F. afterwards by indenture assigned to the plaintiff the. rent reserved by the lease, the counterpart of the. lease, and the benefit of the covenants for payment of the rent therein contained, for the remainder of the term; that afterwards, to wit, on &c., 501. for a half year’? rent became due, and. was still unpaid, &c. Demurrer and joinder. The objection was, that the assignee of the rent could not bring debt for it, inasmuch as there was no privity between him and the tenant. But the Court, upon the authority of Robins v. Cox, 1 Lev. 22, gave judgment for the plaintiff. Alten v. Bryan,, 5 Barn., & Cress. 512.