Church, Ch. J.
The facts in this case, as developed by [180]*180the pleadings, appear briefly to be these. Seth Stoddard and the defendant had been tenants in common of the Woolen Factory, lands, machinery, &c., described in the declaration; and on the 15th day of February, 1844, Stoddard, by indenture under the hands and seals of the respective parties, leased his undivided half thereof to the defendant, his co-tenant, for five years, at an annual rent of one hundred and fifty dollars; with other stipulations, by both parties. This lease was not acknowledged; nor had the defendant caused it to be recorded; but the defendant used and occupied under and by virtue of it, as well as under his right as co-tenant. Before the expiration of one year, and before any rent had become due and payable, Stoddard, on the 22nd day of March, 1845, by deed of mortgage, conveyed his interest in the premises to the plaintiff, to secure the payment of fifteen hundred dollars. The first year’s rent became due and was in arrear; and the plaintiff, as the assignee of Stoddard, or as mortgagee, brings this action of covenant to recover it.
The pleadings are unnecessarily prolix and embarrassing; but there are some principles of importance presented by them, which we shall consider; and there are some questions made, of no importance, which we cannot permit to stand in our way, and which we dispose of, by saying, that in their application to this case, we cannot sustain the defendant’s views.
1. The defendant demurred to the first count for special reasons, and it was, by the superior court, adjudged insufficient; so that the questions now considered, arise under the second count and the proceedings had under that.
The first objection which we notice, is, that the second count should be disregarded as constituting any part of the case, because it was inserted in the declaration, in the county court, by way of amendment, which could not by law be made, as it changed the nature or ground of the plaintiff’s action. We do not assent to this view of it. The original count was in covenant, and set forth the indenture as the ground of the action, and averred an assignment of it to the plaintiff, also a notice and a breach, and that the plaintiff sued as the assignee of Stoddard. This count was insufficient, to be sure; but it shewed the nature and ground of [181]*181the action; and the second count does not shew a different one. It sets forth, more specially, the manner of the assignment made to the plaintiff, and how he became assignee, not of the lease merely, but of the term—the reversion; but it does not introduce a new cause of action.
2. Perhaps, the most interesting question here is, whether this plaintiff, as an assignee of the rent and reversion, if indeed he be such, can sustain this action of covenant, in his own name, for the arrears of rent falling due after the assignment? That, by the antient common law of England, an assignee, in such case, could only maintain an action of debt, we suppose, must be admitted. 1 Chitt. Pl. 114. 1 Sw. Dig. 360. Cro. Car. 109. Thursby v. Plant, 1 Wms. Saund, 237. and notes. But this state of the law was changed, by Stat. 32. Hen. 8. ch. 34., as it was found to be embarrassing in its practical effects. It would be found to be equally so here, if adopted by us. We have not yet adopted it, either by judicial recognition, or legislative enactment. Many of our sister states have, by constitutional or legislative provisions, recognised the common law of England as a part of their codes of law. We have not. We have, in our judicial practice, adopted so much of the common law as was operative as law, in the father-land, when our ancestors left it, and which was adapted to the new state of things here, under our colonial condition. This was our inheritance. But no abrogated or repealed law of England was considered as existing or binding here: the colonists brought no such law with them; they inherited no such law.
We ought not to introduce the principle for which the plaintiff in error contends, into our system. It is unnecessary, and, as we think, inconsistent with other well established doctrines of the common law regarding the rights and liabilities of assigns. An assignee of a lessee may sue in covenant, and is liable in the same form of action. There can be no sufficient reason why the assignee of a lessor should stand differently related to other parties to the lease, and especially why he may not sue in covenant for rent falling due in his own time. And the case is stronger, if there has been an assent or attornment, as it is called, in these pleadings, by which the priority of contract is supposed to [182]*182be transferred. Thursby v. Plant, 1 Wms. Saund. 237. and notes. 1 Chitt. Pl. 114. 1 Sw. Dig. 361. Allen v. Bryan, 5 Barn, & Cress. 512. (11 E. C. L. 292.)
3. The burden of the second, third and fourth pleas to the second count in the declaration, is, that the lease or indenture from which this action arises, was neither acknowledged nor recorded; and therefore, that the plaintiff holds the premises, as assignee or mortgagee, irrespective of the lease, and not as owner of any reversion, to which rent is attached. This objection, it seems to us, does not come well from the defendant, so long as the plaintiff recognises the lease as a valid and subsisting one, and makes his claim under it. For one year, it would be good, without being acknowledged or recorded—for the year in which this rent became payable. 1 Sw. Dig. 132. The lease was not void, for the reasons suggested by the plaintiff—it might be avoided by such third persons as had a right and an interest in doing so, as a lease for a longer period than one year; but no one makes claim against it, but the defendant, who has occupied under it, and by whose neglect it was not recorded.
The lease of Stoddard to the defendant, therefore, as between these parties, must be treated as an effective one, and as leaving, when made, a reversion in Stoddard. By his mortgage to the plaintiff, this reversion, as a subsisting legal interest, was conveyed or assigned to the plaintiff, unless he elected to treat it as void. This he has not done, but claims, as he may, his right as mortgagee or assignee to the rent incident to such reversion. 2 Cruise’s Dig. 111. Moss v. Gallimore, Doug. 275. 2 Sw. Dig. 170. Fitchburgh Man. Co. v. Melven, 15 Mass. R. 268. If the lease had been executed after the mortgage to the plaintiff, he could not, as mortgagee perhaps, have any remedy for the recovery of this rent, without attornment, for want of legal priority. Partington v. Woodcock, 5 Nev. & Man. 672. (36 E. C. L. 418.) McKircher v. Hawley, 16 Johns. R. 289. The defendant relies much on the case of Webb v. Russell, 3 Term R. 393. as sustaining his claim, that this plaintiff has no reversionary interest. But in that case, the covenant to pay rent was made with a mortgagor, and the lease by a mortgagor, in whom, as the court said, there was no legal interest, and who was, therefore, to be treated as a stranger [183]*183to the legal estate. Here, if the plaintiff cannot sue for and recover the rent, no one can, if the claim of the defendant is regarded.
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Church, Ch. J.
The facts in this case, as developed by [180]*180the pleadings, appear briefly to be these. Seth Stoddard and the defendant had been tenants in common of the Woolen Factory, lands, machinery, &c., described in the declaration; and on the 15th day of February, 1844, Stoddard, by indenture under the hands and seals of the respective parties, leased his undivided half thereof to the defendant, his co-tenant, for five years, at an annual rent of one hundred and fifty dollars; with other stipulations, by both parties. This lease was not acknowledged; nor had the defendant caused it to be recorded; but the defendant used and occupied under and by virtue of it, as well as under his right as co-tenant. Before the expiration of one year, and before any rent had become due and payable, Stoddard, on the 22nd day of March, 1845, by deed of mortgage, conveyed his interest in the premises to the plaintiff, to secure the payment of fifteen hundred dollars. The first year’s rent became due and was in arrear; and the plaintiff, as the assignee of Stoddard, or as mortgagee, brings this action of covenant to recover it.
The pleadings are unnecessarily prolix and embarrassing; but there are some principles of importance presented by them, which we shall consider; and there are some questions made, of no importance, which we cannot permit to stand in our way, and which we dispose of, by saying, that in their application to this case, we cannot sustain the defendant’s views.
1. The defendant demurred to the first count for special reasons, and it was, by the superior court, adjudged insufficient; so that the questions now considered, arise under the second count and the proceedings had under that.
The first objection which we notice, is, that the second count should be disregarded as constituting any part of the case, because it was inserted in the declaration, in the county court, by way of amendment, which could not by law be made, as it changed the nature or ground of the plaintiff’s action. We do not assent to this view of it. The original count was in covenant, and set forth the indenture as the ground of the action, and averred an assignment of it to the plaintiff, also a notice and a breach, and that the plaintiff sued as the assignee of Stoddard. This count was insufficient, to be sure; but it shewed the nature and ground of [181]*181the action; and the second count does not shew a different one. It sets forth, more specially, the manner of the assignment made to the plaintiff, and how he became assignee, not of the lease merely, but of the term—the reversion; but it does not introduce a new cause of action.
2. Perhaps, the most interesting question here is, whether this plaintiff, as an assignee of the rent and reversion, if indeed he be such, can sustain this action of covenant, in his own name, for the arrears of rent falling due after the assignment? That, by the antient common law of England, an assignee, in such case, could only maintain an action of debt, we suppose, must be admitted. 1 Chitt. Pl. 114. 1 Sw. Dig. 360. Cro. Car. 109. Thursby v. Plant, 1 Wms. Saund, 237. and notes. But this state of the law was changed, by Stat. 32. Hen. 8. ch. 34., as it was found to be embarrassing in its practical effects. It would be found to be equally so here, if adopted by us. We have not yet adopted it, either by judicial recognition, or legislative enactment. Many of our sister states have, by constitutional or legislative provisions, recognised the common law of England as a part of their codes of law. We have not. We have, in our judicial practice, adopted so much of the common law as was operative as law, in the father-land, when our ancestors left it, and which was adapted to the new state of things here, under our colonial condition. This was our inheritance. But no abrogated or repealed law of England was considered as existing or binding here: the colonists brought no such law with them; they inherited no such law.
We ought not to introduce the principle for which the plaintiff in error contends, into our system. It is unnecessary, and, as we think, inconsistent with other well established doctrines of the common law regarding the rights and liabilities of assigns. An assignee of a lessee may sue in covenant, and is liable in the same form of action. There can be no sufficient reason why the assignee of a lessor should stand differently related to other parties to the lease, and especially why he may not sue in covenant for rent falling due in his own time. And the case is stronger, if there has been an assent or attornment, as it is called, in these pleadings, by which the priority of contract is supposed to [182]*182be transferred. Thursby v. Plant, 1 Wms. Saund. 237. and notes. 1 Chitt. Pl. 114. 1 Sw. Dig. 361. Allen v. Bryan, 5 Barn, & Cress. 512. (11 E. C. L. 292.)
3. The burden of the second, third and fourth pleas to the second count in the declaration, is, that the lease or indenture from which this action arises, was neither acknowledged nor recorded; and therefore, that the plaintiff holds the premises, as assignee or mortgagee, irrespective of the lease, and not as owner of any reversion, to which rent is attached. This objection, it seems to us, does not come well from the defendant, so long as the plaintiff recognises the lease as a valid and subsisting one, and makes his claim under it. For one year, it would be good, without being acknowledged or recorded—for the year in which this rent became payable. 1 Sw. Dig. 132. The lease was not void, for the reasons suggested by the plaintiff—it might be avoided by such third persons as had a right and an interest in doing so, as a lease for a longer period than one year; but no one makes claim against it, but the defendant, who has occupied under it, and by whose neglect it was not recorded.
The lease of Stoddard to the defendant, therefore, as between these parties, must be treated as an effective one, and as leaving, when made, a reversion in Stoddard. By his mortgage to the plaintiff, this reversion, as a subsisting legal interest, was conveyed or assigned to the plaintiff, unless he elected to treat it as void. This he has not done, but claims, as he may, his right as mortgagee or assignee to the rent incident to such reversion. 2 Cruise’s Dig. 111. Moss v. Gallimore, Doug. 275. 2 Sw. Dig. 170. Fitchburgh Man. Co. v. Melven, 15 Mass. R. 268. If the lease had been executed after the mortgage to the plaintiff, he could not, as mortgagee perhaps, have any remedy for the recovery of this rent, without attornment, for want of legal priority. Partington v. Woodcock, 5 Nev. & Man. 672. (36 E. C. L. 418.) McKircher v. Hawley, 16 Johns. R. 289. The defendant relies much on the case of Webb v. Russell, 3 Term R. 393. as sustaining his claim, that this plaintiff has no reversionary interest. But in that case, the covenant to pay rent was made with a mortgagor, and the lease by a mortgagor, in whom, as the court said, there was no legal interest, and who was, therefore, to be treated as a stranger [183]*183to the legal estate. Here, if the plaintiff cannot sue for and recover the rent, no one can, if the claim of the defendant is regarded. If the lease ceased and determined, when the mortgage was made, Stoddard had no longer any claims under it; and if the plaintiff took no reversionary interest, he can claim no rent, and the defendant goes free.
The defendant, to be sure, claims, that his third plea to the second count, alleges that the plaintiff elected to determine the lease, and gave the defendant notice of it, and of course, that he did not recognise the existence of any relationship of landlord and tenant as existing, but claimed the rights of a tenant in common only, under his mortgage deed. But such is not the legal import of the averments in that plea. The plea avers the fact of the lease, the want of acknowledgment, the mortgage and the notice; and these are, in this part of it, the only traversable facts it alleges. The further averment, that the defendant was thereafter in possession, holding as tenant in common with the plaintiff, and not otherwise, is an averment of a legal deduction or inference only, and not traversable. The words not otherwise, are not to be regarded as any traverse of any fact alleged by the plaintiff, in the second count. And the further allegation, that upon the acceptance of the mortgage deed, the lease did absolutely cease and determine, is of the same character; and whether it did so cease and determine, is an inference of law, and not an independent fact averred.
The view we have taken of the validity and legal effect of the lease, as against the defendant, and of the operation of the mortgage deed, necessarily shews all these pleas in bar, to which there has been a demurrer, to be insufficient.
4. And yet the defendant moves in arrest of the judgment, on the ground that the second count is insufficient, and the issue joined upon it immaterial; and this, because it alleges an assignment to the plaintiff of the machinery in the factory, which being personal estate, the plaintiff, as assignee, can have no such estate in reversion in it, as to claim rent, by reason of it: that rent issues out of real estate only.
This property is described as machinery, fixtures, appurtenances. Machinery in a factory, has been adjudged to be personal estate, when it is not firmly attached to the building, and can be moved without injury to it, or to the [184]*184machinery itself. Swift & al. v. Thompson, 9 Conn. R. 63. But machinery used in a factory is not necessarily personal property; and whether it is so, depends upon the manner of its connexion with the realty. And where this is not shewn, it may as well be presumed, that it was so affixed as to constitute it, while thus connected, a part of the building, as otherwise. But however this may be, here was a lease of the factory, machinery, fixtures, &c., as one entire subject, at an entire rent, and the parties treated the whole as one thing, for the use of which rent was to be paid and received. Each part must be used with the other, or the whole was useless.
The allegations in this count of an attornment, or an agreement by the defendant to pay rent to the plaintiff, after the assignment to him, are pertinent; and so is the averment, that “the said Stoddard never sold or assigned the machinery and fixtures to the plaintiff;" and these form a part of the issue joined and put to the jury, in the case, under this count. The allegation of an attornment was not equivalent to that of another tenancy, but that the defendant became tenant and occupied under the lease, and not merely as a tenant in common with the plaintiff. The fact of attornment was a recognition, by the defendant, of the reversion in the plaintiff.
5. The case went to the jury upon the issue in fact, closed upon the plea of the defendant. And now, the defendant insists, that the judge mistook the law in his charge. After having been so long involved in a legal mist, made by these pleadings, it would not be strange, if this were so.
This claim of the plaintiff rests upon the refusal of the court to instruct the jury, that the plaintiff’s proof amounted to an extension of the time for the payment of the rent; and therefore, that the rent did not fall due until the 4th day of April, instead of the 1st day, as alleged in the declaration.
The evidence was offered to prove, and did prove, the facts alleged by the plaintiff, and which were specially denied, by the defendant, in that part of his special plea, on which he tendered the issue to the plaintiff; which issue was, whether there had been an assignment of the machinery and fixtures to the plaintiff, and an assent and attornment by the [185]*185defendant. Whether the time of payment had been extended, was not in issue here. The defendant had made no such claim, but denied that he was liable to pay, at any time.
Besides, the willingness of the plaintiff to accept the rent, on the 4th of April, as expressed to his own attorney, amounted to no obligation, on his part: the assent was merely for the accommodation of the defendant, without any legal or moral consideration ensuing to the plaintiff.
We are satisfied, that the defendant has no legal ground of complaint; and that the judgment ought neither to be arrested, nor a new trial granted.
In this opinion the other Judges concurred.
Judgment affirmed; New trial denied.