By the Court, Mullin, J.
Norton Adams died seised of the premises described in the complaint, prior to the 28th of September, 1857. He left surviving him a minor son, Henry Adams, and his widow, Elizabeth R. Adams, now Elizabeth R. Woolston. It seems that the mother had been appointed general guardian of her son Henry, but at what time does not appear. On said 28th day of September, 1857, the widow leased the premises in question to the defendant, for the term of three years from the 1st of April, 1859, at an annual rent of $350. If the premises were sold, the lessor had the right to terminate the lease at the end of the first or second year. The lease contained covenants on the part of the lessee, to work the farm in a good farmer like manner, and to keep it in good condition; to seed down part, &c. On the 15th of April, 1859, a contract was entered into between the said Elizabeth and the plaintiff, subject to the approval of the Supreme Court, the one to sell and the other to purchase said farm, on the terms specified in the complaint. Subsequently such proceedings were had in said court, on the petition of the said Elizabeth R., as guardian of said Henry Adams, that she was authorized to sell to the plaintiff said premises; and in pursuance of such order, said Elizabeth executed a [277]*277conveyance of the premises to the plaintiff, whereby he became the owner of the fee of said premises absolutely, the widow having released her dower therein. It was a part of the arrangement between the said Elizabeth and the plaintiff that the lease in question should be assigned to him; and it was assigned, except the' rent. The assignment bears date the 13th of April, 1859, being the same date with the contract of sale. The proceedings to obtain authority to sell were instituted in ¡November, 1859, and completed in February, 1860. . The deed to the plaintiff is dated on the 2d of April, 1860.
The action was brought to recover damages for breaches of the covenants in the lease. On the trial,* the lease, assignment, agreement to sell, and the proceedings to obtain permission to sell, and the'deed in pursuance thereof, were put in evidence. The plaintiff’ then' offered to prove breaches of the covenants; caused by injury to the buildings, fences, bad husbandry, &c., which was objected to, and rejected, on the ground that the plaintiff could not maintain an action for such breaches, ancj the complaint was dismissed;" and from such judgment this appeal is taken.
Before proceeding to examine the principal question, it is necessary to ascertain whether the lease was valid, and whether the plaintiff acquired any right or interest in the covenants contained therein. The father having died, leaving a minor child, the mother became the guardian in socage, and as such was entitled to the rents and profits of his real estate, (3 R. S. 2, § 5, 5th ed.;) and such right continued until a testamentary or other guardian was appointed. (Id. § 7.) The chancellor, in (Field v. Schieffelin, (7 John. Ch. 150,) held that a guardian in socage of real estate may lease it in his own name, and dispose of it during the guardianship. And he further held that a chancery guardian had the same power. Chief Justice Nelson, in Holmes v. Seely, (17 Wend. 78,) says: “A guardian in socage [278]*278has the custody of the land of the infant, and is .entitled to'profits for his benefit. He has an interest in the estate, and may lease it, and recover in his own name, and bring trespass. He is in possession by right, and may of course maintain the action of trespass or ejectment against any person entering upon him without right.” In Pond v. Curtiss, (7 Wend. 45,) the lease, in its commencement, read as follows: “It is agreed by and between E. Curtiss, minor, by B. Pond, his guardian &c., and Elisha Curtiss” &c. It was signed Elisha Curtiss, [l. s.,] B. Pond, [l. s.] The suit was brought by the guardian, in' his own name. The defendant pleaded non esi factum, and specially, that the plaintiff was guardian, and the ward had attained the age of twenty-one before the rent sued for came due. There was a demurrer; but the court overruled it, holding • that the guardian may sue in his own name, on a lease made by him in his own name, of the ward’s land, even after the ward has come of age.
If then the mother was guardian in socage, she had the right to make the lease of the premises in question in her own name, and it bound the infant as effectually as if made in his name. But if the mother was not guardian in image, but the'general guardian of her son, she had, as such, P-e same power as a guardian in socage. (3 R. S. 243, § 4, 5th ed. Id. 244, § 10. Id. 245, § 20. See also opinion of the chancellor in Field v. Schieffelin, 7 John. Ch. 150, cited supra.)
The minor, then, as owner in fee, had no right of action for injuries to the premises covered by the covenants in the lease, except upon the lease itself. Had the lease been made without authority and the minor had done nothing to ratify it, it is quite probable that a court of equity would have protected the tenant against an action for damages, on the lease, while the lessee was liable in waste to the owner in fee. • But that question is not here. Only one action can be maintained, and that action must be on the lease.. If the injuries done to the property were not [279]*279covered by the lease, a question might then arise, whether the owner in fee might not sue for waste. But that question is not here. The action is on the lease, and no recovery can be had except for such damages as are covered by it. The lease is. unquestionably assignable, and the assignee can recover damages for breaches of all covenants therein which may be assigned. The question then is, are those covenants, by which the lessee obligates himself not to injure the real estate, assignable? If they are, the plaintiff was entitled to maintain this action.
Before the Code, the term “ not assignable’’ had two significations ; one of which was, that a particular thing was not the subject of assignment, the other, that it was not assignable so as to vest in the assignee a right of action. A right of action for an injury to the person or the character was not the subject of an assignment, 'A non-negotiable note was not, at common law, assignable., so as to enable the assignee to sue in his own name. But in equity, before the Code, and at law or in equity since the Code, such an assignee may sue in his own name. Covenants in a lease were the subject of assignment. Some of them could be assigned, and the assignee could sue in hisjown name for a breach; the breaches of others must have been sued for in the name of the assignor. When the covenant was broken at the time of the assignment, the assignee could not sue in his own name for damages for such breaches. (8 Cowen, 211. 2 Hill, 475. Woodfall’s L. & T. 355. 2 Hill Abr. 392, 393.) But where the assignee of the lease was' owner of the reversion and the covenant r.an with the land, then he might sue for all Lieaches happening after the assignment. (2 Hill, 274. 3 Barb. Ch. 52. 3 R. S. 37, § 17, 5th ed.) When, however, he was the assignee of the lease, but not of the reversion, and the covenants did not run with the land, he could sue in his own name for breaches occurring after the assignment. (8 Cowen, 211. 3 Denio, 297.) But if [280]
Free access — add to your briefcase to read the full text and ask questions with AI
By the Court, Mullin, J.
Norton Adams died seised of the premises described in the complaint, prior to the 28th of September, 1857. He left surviving him a minor son, Henry Adams, and his widow, Elizabeth R. Adams, now Elizabeth R. Woolston. It seems that the mother had been appointed general guardian of her son Henry, but at what time does not appear. On said 28th day of September, 1857, the widow leased the premises in question to the defendant, for the term of three years from the 1st of April, 1859, at an annual rent of $350. If the premises were sold, the lessor had the right to terminate the lease at the end of the first or second year. The lease contained covenants on the part of the lessee, to work the farm in a good farmer like manner, and to keep it in good condition; to seed down part, &c. On the 15th of April, 1859, a contract was entered into between the said Elizabeth and the plaintiff, subject to the approval of the Supreme Court, the one to sell and the other to purchase said farm, on the terms specified in the complaint. Subsequently such proceedings were had in said court, on the petition of the said Elizabeth R., as guardian of said Henry Adams, that she was authorized to sell to the plaintiff said premises; and in pursuance of such order, said Elizabeth executed a [277]*277conveyance of the premises to the plaintiff, whereby he became the owner of the fee of said premises absolutely, the widow having released her dower therein. It was a part of the arrangement between the said Elizabeth and the plaintiff that the lease in question should be assigned to him; and it was assigned, except the' rent. The assignment bears date the 13th of April, 1859, being the same date with the contract of sale. The proceedings to obtain authority to sell were instituted in ¡November, 1859, and completed in February, 1860. . The deed to the plaintiff is dated on the 2d of April, 1860.
The action was brought to recover damages for breaches of the covenants in the lease. On the trial,* the lease, assignment, agreement to sell, and the proceedings to obtain permission to sell, and the'deed in pursuance thereof, were put in evidence. The plaintiff’ then' offered to prove breaches of the covenants; caused by injury to the buildings, fences, bad husbandry, &c., which was objected to, and rejected, on the ground that the plaintiff could not maintain an action for such breaches, ancj the complaint was dismissed;" and from such judgment this appeal is taken.
Before proceeding to examine the principal question, it is necessary to ascertain whether the lease was valid, and whether the plaintiff acquired any right or interest in the covenants contained therein. The father having died, leaving a minor child, the mother became the guardian in socage, and as such was entitled to the rents and profits of his real estate, (3 R. S. 2, § 5, 5th ed.;) and such right continued until a testamentary or other guardian was appointed. (Id. § 7.) The chancellor, in (Field v. Schieffelin, (7 John. Ch. 150,) held that a guardian in socage of real estate may lease it in his own name, and dispose of it during the guardianship. And he further held that a chancery guardian had the same power. Chief Justice Nelson, in Holmes v. Seely, (17 Wend. 78,) says: “A guardian in socage [278]*278has the custody of the land of the infant, and is .entitled to'profits for his benefit. He has an interest in the estate, and may lease it, and recover in his own name, and bring trespass. He is in possession by right, and may of course maintain the action of trespass or ejectment against any person entering upon him without right.” In Pond v. Curtiss, (7 Wend. 45,) the lease, in its commencement, read as follows: “It is agreed by and between E. Curtiss, minor, by B. Pond, his guardian &c., and Elisha Curtiss” &c. It was signed Elisha Curtiss, [l. s.,] B. Pond, [l. s.] The suit was brought by the guardian, in' his own name. The defendant pleaded non esi factum, and specially, that the plaintiff was guardian, and the ward had attained the age of twenty-one before the rent sued for came due. There was a demurrer; but the court overruled it, holding • that the guardian may sue in his own name, on a lease made by him in his own name, of the ward’s land, even after the ward has come of age.
If then the mother was guardian in socage, she had the right to make the lease of the premises in question in her own name, and it bound the infant as effectually as if made in his name. But if the mother was not guardian in image, but the'general guardian of her son, she had, as such, P-e same power as a guardian in socage. (3 R. S. 243, § 4, 5th ed. Id. 244, § 10. Id. 245, § 20. See also opinion of the chancellor in Field v. Schieffelin, 7 John. Ch. 150, cited supra.)
The minor, then, as owner in fee, had no right of action for injuries to the premises covered by the covenants in the lease, except upon the lease itself. Had the lease been made without authority and the minor had done nothing to ratify it, it is quite probable that a court of equity would have protected the tenant against an action for damages, on the lease, while the lessee was liable in waste to the owner in fee. • But that question is not here. Only one action can be maintained, and that action must be on the lease.. If the injuries done to the property were not [279]*279covered by the lease, a question might then arise, whether the owner in fee might not sue for waste. But that question is not here. The action is on the lease, and no recovery can be had except for such damages as are covered by it. The lease is. unquestionably assignable, and the assignee can recover damages for breaches of all covenants therein which may be assigned. The question then is, are those covenants, by which the lessee obligates himself not to injure the real estate, assignable? If they are, the plaintiff was entitled to maintain this action.
Before the Code, the term “ not assignable’’ had two significations ; one of which was, that a particular thing was not the subject of assignment, the other, that it was not assignable so as to vest in the assignee a right of action. A right of action for an injury to the person or the character was not the subject of an assignment, 'A non-negotiable note was not, at common law, assignable., so as to enable the assignee to sue in his own name. But in equity, before the Code, and at law or in equity since the Code, such an assignee may sue in his own name. Covenants in a lease were the subject of assignment. Some of them could be assigned, and the assignee could sue in hisjown name for a breach; the breaches of others must have been sued for in the name of the assignor. When the covenant was broken at the time of the assignment, the assignee could not sue in his own name for damages for such breaches. (8 Cowen, 211. 2 Hill, 475. Woodfall’s L. & T. 355. 2 Hill Abr. 392, 393.) But where the assignee of the lease was' owner of the reversion and the covenant r.an with the land, then he might sue for all Lieaches happening after the assignment. (2 Hill, 274. 3 Barb. Ch. 52. 3 R. S. 37, § 17, 5th ed.) When, however, he was the assignee of the lease, but not of the reversion, and the covenants did not run with the land, he could sue in his own name for breaches occurring after the assignment. (8 Cowen, 211. 3 Denio, 297.) But if [280]*280he did not own the reversion, he could not recover in his own name for breaches of covenants which run with the land. (8 Cowen, 211. 3 Denio, 296, 297. 1 Hill. Abr. 129, § 74.)
The lease was assigned in April,. 1859, and the assignment took effect immediately. The contract of sale subject to the approval of the court bore date the same day of the assignment of the leSse, and took effect immediately. In pursuance of this agreement, title was subsequently perfected in the plaintiff. The deed from the special guardian to the plaintiff bears date the 2d of April, 1860. The contract of sale by the mother was wholly unauthorized, and did not bind either the son or the estate, except so far as the mother, as guardian, had the power to deal with the possession. I have already shown that she had, as guardian, such an interest in the premises as would enable her to maintain trespass, or even ejectment, (see also 5 John. 51,) during the son’s minority. The lease to the defendant may not have covered the whole period of the minority; if not, then there was a reversionary interest in the guardian, which she would have the right to assign ; and as this was the only interest the guardian had to convey, it is probable that this is all that the plaintiff got under the contract with the guardian. If this interest passed, as I think it did, the plaintiff had such a reversionary interest in the premises as would enable Mm to recover damages for an injury to such interest. The deed from the special guardian did not convey to the plaintiff any interest in the fee, which would enable him to sue for an injury to such estate or interest before the actual delivery of the deed, which seems to have occurred on or about the 2d of April, 1860. It was conceded, on the trial, that the defendant gave up the possession of the farm on the 1st of April, 1860. It is quite clear that no damages occurred • for which the plaintiff could sue as owner of the reversion under the deed of [281]*281the 2d of that month. If he is entitled to recover at all it must be on the ground above suggested, as assignee of the lease and the interest in the premises as tenant of the guardian under the contract of sale, which, for the purposes of the case, we must treat as the creation of a tenancy to take effect after the termination of the lease of the defendant. So far, then, as the acts of the defendant were prejudicial to the rights of the plaintiff standing in this relation to the premises, he is entitled to recover, but no further. The minor was the owner of the fee in reversion, and for injuries to such interest he had a right of action, and the bringing the one action was no bar to the action of the other, as they sued in different rights, and to protect different interests. (1 Chit. Pl. 51.) The learned justice held, at the circuit, that the plaintiff was not entitled to damages for an injury to the land, although provided for in the lease. In this I think he was mistaken. The proposition that the assignee of the lease, only, cannot recover for injury to the reversion, is perfectly correct. But under the peculiar facts of the case, it seems to me the plaintiff had such an interest in the reversion as entitled him to recover for injury done to it. For these reasons, I think, the plaintiff was improperly nonsuited, and that the judgment should be reversed and a new trial granted, costs to abide the event.
[Jefferson General Term,
October 7, 1862.
Morgan, J., dissented.
New trial granted.
Mullin, Morgan and Bacon, Justices.]