The opinion of the court was delivered by
Royce, J.
The case must turn upon the effect, and operation, of the deed from Charles W. Watkins to the defendant. A question is made in the argument, whether that deed operated at all upon the leasehold interest of the grantor. It was a deed of release and quitclaim, in common form, of all the grantor’s “ right, title, interest, property, estate and demand, in, and to, certain tracts, pieces and parcels of land,” &c. And, according to the operation always given to this species of conveyance, in Vermont, every estate and interest which the grantor had in the lands described, [486]*486must be taken to have passed to the defendant under these sweeping and unqualified expressions. But the case finds that the tract first described in the deed, namely, the share set to Charles W. Watkins, in the estate of his late father, included a part of the premises previously assigned in dower to Rebecca Watkins ; and that portion of the dower must, therefore, have been embraced in the lease from the plaintiff and his wife to said Charles W. It follows, that so far, at least, the deed to the defendant did operate to pass the leasehold interest of Charles W. Watkins. A reversionary estate in fee, and a particular estate for life, or years, may well be conveyed by the same deed, if the terms of the conveyance are sufficiently comprehensive and appropriate for such a purpose. Burton v. Barclay, 7 Bing. 745.
Admitting, for the present, that the deed had no farther operation upon the leasehold estate, or did not convey the whole of it, it still operated as an assignment, pro tanto, and would regularly subject the defendant, for rent subsequently falling due. It has, indeed, been truly said, that the liability of the assignee, to the obligations created by the original lease, results from privity of estate, and not alone from privity of contract, like the obligations of the immediate parties to the lease ; and that if the assignee acquires but a part of the premises demised, the privity of estate between him and the lessor is limited accordingly. But to admit, as a conclusion from this, that he is not liable in debt, or covenant, for rent becoming payable whilst he holds under the assignment, would be to enable the tenant greatly to abridge the remedies of his lessor, by assigning the premises in parcels to different persons. There may be a doubt, ( which we have not found it necessary, in this case, to solve) whether the whole rent may be declared for against such an assignee, leaving him at liberty to defend in reference to his part of the premises, or to plead in abatement the non-joinder of other persons liable, according to the intimations in 1 Saund. R. 519, note ; 5 B. & C. 482; 2 Chit. PI. 552, note ; Saund. PI. &. Ev. 623, 625; or whether a part only should be demanded, on the principle of apportionment. It is familiar law, that rent may be apportioned, though this is generally spoken of as the result of some act on the part of the lessor, or of a stranger. It happens when the lessor grants the re[487]*487version of part of the land, out of which the rent issues, or grants part of the rent to one person, and part to another. So when a stranger evicts the tenant from a part of the land by paramount title. 5 B. & A. 876; 3 Kent’s Com. 469 ; 2 East. R. 576; 2 Wend. R. 561; 1 Sw. Dig. 574. In the cases first put, the tenant comes to have two landlords instead of one. This results from the nature of covenants running with the land, or covenants annexed to the tenure, as they are sometimes called. They attend, and follow, the estate, as accessories or incidents to it; and if that becomes divided, or apportioned, the covenants become so likewise. Covenants of this kind, on the part of the lessor, equally pass to the assignee of the lessee. And it is advanced as clear law, by Hammond on Parties, 120, that such an assignee of part of the premises leased, is entitled to his suit on the lessor’s covenants, upon the like principle of apportionment. The author pertinently asks — “ what reason exists for distinguishing between him and the lord’s assign ? ” Though I have found it no where expressly laid down, that apportionment of rent can be brought about by the act of the lessee, or those claiming under him, yet such a consequence would seem to flow from the nature of these annexed covenants, as also to be implied in the reasoning of court and counsel in severa! of the cases, especially in Hare v. Cator, 2 Cowp. 766. It might be added, that justice to the assignee would appear to suggest a rule, which should measure the extent of bis liability, by that of his privity of estate. From all this, I conclude, that the landlord may declare against such an assignee, ( without undertaking to say whether he must) for a share of the rent, proportioned to the relative value of the part which he holds by assignment.
The next objection proceeds upon the same construction of the deed to the defendant, by supposing it not to convey the whole of the leasehold estate. Upon such a construction of the deed, the averment in the declaration, that all the estate, &c., came to the defendant by assignment, is not literally satisfied by the proof. And this is urged as a fatal variance. The allegation should, doubtless, be understood to mean, not only an assignment of the whole estate in quantity of interest, but of that estate in all the land. Most of the cases upon the effect of such an allegation, have related to the for[488]*488mer sense in which it is here used. And it is well settled that the lessee’s whole estate and interest, in the premises assigned, must pass to the assignee. Without this there can be no legal assignment, but at most, an under-lease, ora conveyance ¡n the nature of one. On this distinction the cases of Halford v. Hatch, 1 Doug. 183, and Eaton v. Jaques, 2 Doug. 455, were decided. It was even held in the latter case that, though the whole legal interest did pass to the assignee, yet if it was defeasible, as by way of mortgage, it was not such an assignment as would subject the assignee for rent, unless he had taken possession before the rent claimed had become payable. But subsequent cases have applied the language of Ld. Mansfield, in Walker v. Reeves, 2 Doug. 461, note, that — “ By the assignment the title and possessory right passed, and the assignee became possessed in law; and the doctrine of Eaton v. Jaques has, accordingly, been overruled. Williams v. Bassanquet, 1 B. & B. 238; Burton v. Barclay, before cited; Haig v. Harmon, 4 Bligh. 380. It is only as to the effect of the allegation in the latter sense above stated, that the present question arises. There are grounds for requiring exact proof of the allegation in the former sense, which do not apply here. When an assignment is alleged, that term is understood in its legal acceptation, which, as I have already shown, imports a conveyance of the whole estate in the premises assigned, but does not require a conveyance or assignment of all the leasehold premises. Neither are the covenants transmitted with the land, unless the same estate is assigned to which they were annexed. But an assignment of all the premises is not required for this purpose, because the covenants, like other accessories, “ will shape and conform themselves to the accidents of their principal. ” Ham. P. 119.
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The opinion of the court was delivered by
Royce, J.
The case must turn upon the effect, and operation, of the deed from Charles W. Watkins to the defendant. A question is made in the argument, whether that deed operated at all upon the leasehold interest of the grantor. It was a deed of release and quitclaim, in common form, of all the grantor’s “ right, title, interest, property, estate and demand, in, and to, certain tracts, pieces and parcels of land,” &c. And, according to the operation always given to this species of conveyance, in Vermont, every estate and interest which the grantor had in the lands described, [486]*486must be taken to have passed to the defendant under these sweeping and unqualified expressions. But the case finds that the tract first described in the deed, namely, the share set to Charles W. Watkins, in the estate of his late father, included a part of the premises previously assigned in dower to Rebecca Watkins ; and that portion of the dower must, therefore, have been embraced in the lease from the plaintiff and his wife to said Charles W. It follows, that so far, at least, the deed to the defendant did operate to pass the leasehold interest of Charles W. Watkins. A reversionary estate in fee, and a particular estate for life, or years, may well be conveyed by the same deed, if the terms of the conveyance are sufficiently comprehensive and appropriate for such a purpose. Burton v. Barclay, 7 Bing. 745.
Admitting, for the present, that the deed had no farther operation upon the leasehold estate, or did not convey the whole of it, it still operated as an assignment, pro tanto, and would regularly subject the defendant, for rent subsequently falling due. It has, indeed, been truly said, that the liability of the assignee, to the obligations created by the original lease, results from privity of estate, and not alone from privity of contract, like the obligations of the immediate parties to the lease ; and that if the assignee acquires but a part of the premises demised, the privity of estate between him and the lessor is limited accordingly. But to admit, as a conclusion from this, that he is not liable in debt, or covenant, for rent becoming payable whilst he holds under the assignment, would be to enable the tenant greatly to abridge the remedies of his lessor, by assigning the premises in parcels to different persons. There may be a doubt, ( which we have not found it necessary, in this case, to solve) whether the whole rent may be declared for against such an assignee, leaving him at liberty to defend in reference to his part of the premises, or to plead in abatement the non-joinder of other persons liable, according to the intimations in 1 Saund. R. 519, note ; 5 B. & C. 482; 2 Chit. PI. 552, note ; Saund. PI. &. Ev. 623, 625; or whether a part only should be demanded, on the principle of apportionment. It is familiar law, that rent may be apportioned, though this is generally spoken of as the result of some act on the part of the lessor, or of a stranger. It happens when the lessor grants the re[487]*487version of part of the land, out of which the rent issues, or grants part of the rent to one person, and part to another. So when a stranger evicts the tenant from a part of the land by paramount title. 5 B. & A. 876; 3 Kent’s Com. 469 ; 2 East. R. 576; 2 Wend. R. 561; 1 Sw. Dig. 574. In the cases first put, the tenant comes to have two landlords instead of one. This results from the nature of covenants running with the land, or covenants annexed to the tenure, as they are sometimes called. They attend, and follow, the estate, as accessories or incidents to it; and if that becomes divided, or apportioned, the covenants become so likewise. Covenants of this kind, on the part of the lessor, equally pass to the assignee of the lessee. And it is advanced as clear law, by Hammond on Parties, 120, that such an assignee of part of the premises leased, is entitled to his suit on the lessor’s covenants, upon the like principle of apportionment. The author pertinently asks — “ what reason exists for distinguishing between him and the lord’s assign ? ” Though I have found it no where expressly laid down, that apportionment of rent can be brought about by the act of the lessee, or those claiming under him, yet such a consequence would seem to flow from the nature of these annexed covenants, as also to be implied in the reasoning of court and counsel in severa! of the cases, especially in Hare v. Cator, 2 Cowp. 766. It might be added, that justice to the assignee would appear to suggest a rule, which should measure the extent of bis liability, by that of his privity of estate. From all this, I conclude, that the landlord may declare against such an assignee, ( without undertaking to say whether he must) for a share of the rent, proportioned to the relative value of the part which he holds by assignment.
The next objection proceeds upon the same construction of the deed to the defendant, by supposing it not to convey the whole of the leasehold estate. Upon such a construction of the deed, the averment in the declaration, that all the estate, &c., came to the defendant by assignment, is not literally satisfied by the proof. And this is urged as a fatal variance. The allegation should, doubtless, be understood to mean, not only an assignment of the whole estate in quantity of interest, but of that estate in all the land. Most of the cases upon the effect of such an allegation, have related to the for[488]*488mer sense in which it is here used. And it is well settled that the lessee’s whole estate and interest, in the premises assigned, must pass to the assignee. Without this there can be no legal assignment, but at most, an under-lease, ora conveyance ¡n the nature of one. On this distinction the cases of Halford v. Hatch, 1 Doug. 183, and Eaton v. Jaques, 2 Doug. 455, were decided. It was even held in the latter case that, though the whole legal interest did pass to the assignee, yet if it was defeasible, as by way of mortgage, it was not such an assignment as would subject the assignee for rent, unless he had taken possession before the rent claimed had become payable. But subsequent cases have applied the language of Ld. Mansfield, in Walker v. Reeves, 2 Doug. 461, note, that — “ By the assignment the title and possessory right passed, and the assignee became possessed in law; and the doctrine of Eaton v. Jaques has, accordingly, been overruled. Williams v. Bassanquet, 1 B. & B. 238; Burton v. Barclay, before cited; Haig v. Harmon, 4 Bligh. 380. It is only as to the effect of the allegation in the latter sense above stated, that the present question arises. There are grounds for requiring exact proof of the allegation in the former sense, which do not apply here. When an assignment is alleged, that term is understood in its legal acceptation, which, as I have already shown, imports a conveyance of the whole estate in the premises assigned, but does not require a conveyance or assignment of all the leasehold premises. Neither are the covenants transmitted with the land, unless the same estate is assigned to which they were annexed. But an assignment of all the premises is not required for this purpose, because the covenants, like other accessories, “ will shape and conform themselves to the accidents of their principal. ” Ham. P. 119. The question, then, is, whether the allegation, so far as it imports an assignment of all the premises^ should be regarded as matter of description, and, therefore, to be strictly proved as laid, or like other allegations of number or quantity, which usually do not require proof to the full extent alleged. Here, again, the authorities are conflicting. In one of the cases, at least, to which we have been referred, (and I have not consulted all the others,) the allegation, the plea, and the issue tried, were the same'as in this case; and it appeared that one tract, contained in the [489]*489lease, was omitted in the assignment. This was held to be a fatal variance. Hare v. Cator, 2 Cowp. 766. On the the other hand, it has been more recently said, that this general allegation will suffice, though the assignment is of part, only, of the premises leased. 5 B. & C. 482; Chit. Pl. and Saund. Pl. and Ev., as before cited. I should incline to the latter opinion, especially, as the landlord is not presumed to have accurate knowledge of the transfers and assignments made by his tenant. But this point may be passed without further remark, as the case is decided on another ground.
It remains to be determined, whether the deed to the defendant did actually include all the leasehold premises ; in other words, all the premises assigned in dower to Rebecca Watkins, one of the lessors. Her dower consisted of certain portions of the buildings and privileges of the mansion-house, and a tract of 37 acres on the west side of the farm. The reversion of this dower was, afterwards, divided into six parts, in the division of the farm, upon the death of Elias Watkins, the younger, Charles W. Watkins, the plaintiff’s lessee, took it in the buildings, where his portion of his father’s estate was located, and his five brothers and sisters took it in the 37 acres ; which, for that purpose, was divided into five distinct parts or lots. The deed in question is to be construed with a due reference to this condition of things. It professes to convey the share set to the grantor in the division of his father’s estate, referring to the report of the committee of division, on record, for bounds, &c., — his share jn the reversion of the land, of which his father’s wid* ow was endowed, — and “ one other piece, set off by gaid ‘ committee, of the reversion of the widow Rebecca Howe, •'late widow of Elias Watkins, the elder, deceased, having ‘ reference to the records aforesaid, for the particular bounds ‘ thereof. ” Now it does not appear that Charles W. Watkins had any interest in either of the lots, into which the 37 acres was divided, except his leasehold estate, which extended through the whole of it. Hence, the deed is apparently inapplicable to anything but the entire 37 acres, which was truly “ of the dower of Rebecca Watkins, ” not heing the whole of it. And though the word “ reversion ” is used, instead of dower, the latter is obviously intended ; for the widow had dower but no reversion. If the grantor meant [490]*490one of those lots in the subdivision, which was it ? The whole difficulty evidently arises from an improper reference t0 the committee, as also to the records. “ Said committee ” would literally refer to the committee who divided the estate of the 2d Elias Watkins ; whereas, the committee upon the estate of the elder Watkins must have been intended. The' same may be said of “ the records aforesaid. ” This part of the deed must be senseless and inoperative, unless we apply it to the subject matter which the parties apparently had in view, regardless of these accidental repugnances. As said fey Ld. Mansfield in one of the cases cited, — “ To do jus-* tice between men, it is necessary to understand things as they really are, and construe instruments according to the intent of the parties. ” We think that this part of the deed should have its application to the whole 37 acres. The result is, that the defendant acquired the whole leasehold estate, and .the plaintiff was entitled to the Whole rent •^demanded.
The judgment of the county court is, therefore, reversed.