Childs v. Clark

3 Barb. Ch. 52, 1848 N.Y. LEXIS 197

Opinion

The Chancellor.

At the time of the conveyance of the premises, from the lessors, to Campbell, in July, 1836, the complainant was not only the assignee of the rent for seven, years from the first of April, 1833, but of all the right and claim of the lessors to any benefit under the lease for the same period of time. It was therefore an assignment of an interest in the land itself as well as in the rent, so far as an interest in the land was necessary to give the assignee all the rights of the original lessors for the recovery of the rent, either by action or distress. And it is settled, both in this state and in England, that an assignment creates such a privity of estate between the assignee and the lessee that the former may maintain a suit in his own name for the rent which accrues and becomes payable while such privity of estate exists. (Ards v. Watkins, Cro. Eliz. 637, 651. Coke Litt. 215, a. Allen v. Bryan, 5 Barn. & Cress. Rep. 512. Demarest v. Willard, 8 Cowen’s Rep. 206. Littlewood v. Jackson, Idem, 211. Willard v. Tillman, 2 Hill’s Rep. 274.) And the complainant, previous to the deed of July, 1836, would have had the same right to bring an actian, in his own name, against Campbell as the assignee of 'Griffin the lessee, for the rent which became payable on the first of April, 1836, after Campbell became such assignee. (Newcomb v. Harvey, Carth. 161. Addison’s Law of Cont. 300. Gilb. on Rents, 174.)

Nor was that part of the term out of which the complainant's rent and interest in the land, under the lease and the assignment for the security and recovery of that rent, merged in the fee of the land which was conveyed to Campbell by the deed of the original lessors. For the grantee in that deed liad actual notice of the assignment to'the complainant; which of itself would have been sufficient, in equity, to prevent a merger of the • term during the seven years. But, in addition'to this, the right of the complainant, as assignee for the seven years, was expressly excepted and reserved in the deed fror.3 the lessors to Campbell. The rights of landlord and tenant did not unite in the same person, therefore, during the residue of the seven years which was then unexpired; so that there was no merger even at law. And the right of the complainant to institute an action at law against Campbell, as the assignee of Griffin the lessee, continued the same as it was before the deed of July, 1836, while Campbell continued to possess and enjoy the teim under the previous assignment from Griffin.

The rights of the complainant, as the assignee of the interest of the original lessors in the rent of the premises for the seven years, appearing upon the face of the deed to Campbell, under and through which Cleveland, Meade, Couch, and Clark derived their title to the premises, as assignees of the rent and reversion after the seven years, such deed was constructive notice to them of the right of the complainant; although his assignment had not been recorded. They therefore took their several interests in the premises as assignees, in law, of the lessee, during the continuance of the seven years, and subject to the right of the complainant, as assignee of the rent; in the same manner as Campbell held the same previous to his conveyances respectively. They then took those interests subject to the payment of the rent, or of their respective portions thereof, which accrued or became payable during the times they held and enjoyed the premises as such assignees. And as the convejmnce to each was for the whole term, in a part of the premises, the right of action against them as assignees existed, as to a portion of the rent at least, although some of them were only assignees of undivided interests in the premises. For the privity of estate exists between the landlord and the assignee of the lessee, pro tanto, where the lessee only assigns a part of the premises, if the assignment is of his whole interest and estate in that part; the distinction between an assignment and an under tenancy, depending solely upon the quantity of interest which passes by the assignment, and not upon the extent of the premises transferred thereby.

Footnotes

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(a) (Finl. Land. & Ten. 294. Conan v. Ketnise, W. Jones' Rep. 245. Stevenson v. Lombard, 2 East's Rep. 580. Brown v. Hore, Cro. Eliz. 633.) Whether a joint action should be brought against all who ye re charge able as tenants in common for the rent which accrue! while they were assignees of undivided interests in the premises, it is not necessary to decide at this time. In Merceron v. Dowson, (5 Barn. & Cress. 479,) in an action against an assignee of the lessee, for a breach of a covenant to repair, the court of- king!s bench held that the defendant could not plead in bar of the action that he was only assignee of an undivided interest in the premises. But-there were doubts expressed by the judges as to the right of the plaintiff to sue one assignee of ah undivided portion of the premises alone, and to charge him separately for the whole repairs. And they appear to have been of opinion that the defendant might have pleaded in abatement that he was only a tenant in common with others, as an assignee of an undivided interest in the premises. In the subsequent case of Curtis v. Spitty, (1 Hodges’ Rep. 153,) in the court of common pleas in England, the assignee of the entire interest of the lessee in a separate parcel of the demised premises, was sued in an action of debt for the whole rent reserved in the lease. And Chief Justice Tindal said it was a very nice and difficult question, not settled by any decision to be found in the books, -whether there existed a privity of estate as to the whole land embraced in the lease, by an assignment of part c-nly, so as t* authorize the landlord to charge the assignee of that part, in-an action of debt, with the rent of the whole land embraced in the original lease. That case however was disposed of upon a question of variance in the pleadings; so that the question as to the liability of the assignee for the whole rent, either in that form of action or in an action of covenant upon the lease, was not disposed of by the court.

It is perfectly well settled, however, that the assignee of a lease is only liable as such assignee for the rent which accrued or became payable, or for other covenants broken, while he wag such assignee; and that be may discharge himself from all further liability by assigning his interest in the premises to a stranger, even if the assignee is a beggar; provided he actually: relinquishes the possession of the premises and all interest therein, so that the assignment is not merely colorable or fraud ulent. For as there is no privity of contract between the lessor and the assignee of the lease, the latter is personally liable only in respect to his privity of estate in the land, or in respect to covenants running with the land, for the rent wlrich accrued and became payable after such privity of estate commenced, and before it terminated; that is, While lie enjoyed; or had the right to enjoy, thé premises, or some part thereof) ás an assignee of the lease. (Armstrong v. Wheeler, 9 Cowen's Rep. 88. Tovey v. Pitcher, Carth. Rep. 177. . Lekeux v. Nash, 2 Stran. Rep. 1221. Taylor v. Shum, 1 Bos. & Pul. 21.) It is also the settled law of this state, that a lucre mortgagee of a term, who has not. entered under his mortgage, is not personally liable as an assignee of the interest of the lessee in the premises. (Astor v. Miller, 2 Paige's Rep. 68; 5 Wend. Rep. 603, S. C. on appeal.)

it is evident, therefore, that the defendant Clark is not personally liable for any rent which accrued and became payable previous to the conveyance to him, in June, 1839. And Couch is not liable, as assignee, for any rent which accrued and became pa. cable after his conveyance to Campbell, in November, 1838. Cla'ik. however, is personally liable to the complainant, either at law or in equity, as the assignee of the Whole interest of the lessee, for all of the half year’s arrears of rent which became due and payable in November, 1839; which was the only rent that became payable subsequent to the time when he became assignee. And Couch is liable to the complainant for a part, at least, of the two payments which became due on the first of April and on the first of November, 1839; while he was the assignee or owner of one-fourth of the premises. Cleveland and Meade are also liable for a portion, at least, of the three semiannual payments which became due previous to their conveyance to Clark. And I think the complainant had a perfect remedy at law for the recovery of the several amounts for which the defendants in this suit, and Cleveland and Meade, were thus liable, if he could have proved the execution of the last assignment.

But even if the remedy at law was so doubtful or difficult as to authorize the complainant to come into this court for relief, the objection that this bill is multifarious is well taken. For Clark has no interest in, or connection with the part of the rent for which Couch is liable. Nor has the latter any interest in, or connection with, the rent which accrued and became payable after the conveyances of the premises to Clark. The vice chancellor appears to suppose the complainant has an equitable lien upon the land in the hands of Clark, for the whole rent which is unpaid. If that was so, Couch, as the mortgagee of two undivided fourth parts of the premises upon which that lien existed, would be a proper party to a bill to subject the land, or the future income thereof, to the payment of the rent. It must be recollected, however, that. the whole of the term of seven years, out of and during the continuance of which the complainant’s rent was to arise, had expired several years before the filing of the bill in this cause. The only interest which either of these defendants had in the premises, at that time was, i,n the freehold estate, which had been acquired from the original lessor, under the deed of July, 1836. And the residue of the term originally granted to Griffin, in which the complainant never had any interest under the assignment from . he lessors, was actually merged, both at law and in equity, in the absolute fee, which after the expiration of the seven years was vested in the same persons and in the same rights.

The order appealed from must, therefore, be reversed without costs to either party. And the demurrers must be allowed and the bill dismissed with costé-; but without prejudice to the rights of the complainant at law, or to proceed by several suits in equity if it shall be deemed proper to institute such suits.

As the defendants both appeared by the same solicitor, and their demurrers to the bill are the same in substance, only one bill of costs is to be allowed.

See Van Rensselaer v. Jones, (2 Barb. Sup. Court Rep. 643.)