Von Horne v. Crain

1 Paige Ch. 455

Opinion

The Ohahcellor :—The lease to Williamsons, and the agreement indorsed thereon, being' executed at the same time, and in relation to the same subject matter, may be construed together and taken as one instrument.

[1] Jackson v. *Dunsbagh, 1 John. Ca. 91.) Such was undoubtedly the intention of the parties, and this court ought to carry that intention into effect. The execution of the lease and agreement probably was defective. By some inadvertence I have not been furnished with the original instrument, or copies thereof. But I understand from the pleadings, that the lease, in its commencement, purported to be made between J. A. Stewart and T. Ten Eyck, for themselves, and as attorneys for A. Stewart, W. R. Stewart and W. Benson, of the first part, and the Williamsons of the second part; and that it was signed and sealed J. A. Stewart and T. Ten Eyck in their own names only, without any thing on the face of the instrument to show an intention to sign and seal it as attorneys for the other persons named. (9 Coke, 76 b; Bogart v. De Bussy, 6 John Rep. 94.) Ten Eyck had only a life estate as tenant by the curtesy, in one-sixth of lot No. 17, and the lease does not profess to convey the' interest of his daughter, who probably was under age at the time.

But in the view I have taken of this subject, the rights of the parties do not depend upon the extent of the interest which was actually acquired by the Williamsons under the lease of October, 1803. It was a valid lease of all the interest which J. A. Stewart and T. Ten Eyck then had in the premises. The lease contains a general covenant of warranty against the lawful claims of all persons. This covenant and the covenant to convey run with their interest in the land, and are binding on their heirs and assigns.[1] If the assignees of the Williamsons could maintain an action on either of these covenants, against J. A. Stewart and T. Teh Eyck, they would have the same remedy against Crain as the assignee of the reversion of two-sixths of lot No. 17, and two-fifths of the four acre lot. If Stewart and Ten Eyck had purchased in the outstanding claim of the other persons, it would have enured to the benefit of their lessees by virtue of the covenant of warranty in the lease. (Jackson v. Stevens, 13 John. Rep. 316; Jackson v. Hubble, 1 Cowen’s Rep. 613.) And the same effect must be produced when it is purchased in by the assignee of the reversion, who is bound by the covenants *contained in the lease. (Per Holt, C. J., 6 Mod. Rep. 258, and Kent, J., 1 John. Ca. 91.)

An assignee of an undivided moiety of the leasehold premises, from the Williamsons, could maintain an action on the covenant of warranty contained in the lease; hut it is at least doubful whether he could maintain an action on the covenant to convey, without joining with the assignee of the other moiety. The covenant of warranty relates to every part and portion of the premises, but the covenant. to convey relates only to the whole. If the assignee of one moiety unconscientiously refuses to join with his co-tenant in doing any act which is for the benefit of the estate of both, a court of equity will compel him to join, or permit the co-tenant to do it for his own benefit, provided it can be done without injury to either. Such being the equity of the Van Hornes, as the assignees of a moiety of the premises under the lease and agreement, Crain could not defeat it by the purchase of the reversion.

He must, therefore, elect to convey to them a moiety of he premises, subject to the sub-leases of the fulling mill and carding machine lots, on receiving one-half of the purchase-money specified in the lease and agreement; or to convey the whole, subject to those sub-leases, they paying or securing the payment of the purchase-money in the manner mentioned in the lease and agreement. And there must be a reference to a master to state an account between the parties, of the rents and profits of the premises received by, or chargeable to them respectively; and of all sums paid by, or due to either for rent or repairs, or for other expenditures for the benefit of the leasehold estate. If Crain elects to convey a moiety of the premises only, the master must also examine and report whether the premises are so situated that a partition thereof cannot be made without great prejudice to the owners thereof; and with liberty to make a separate report on that subject. And all questions of costs and other questions and directions must be reserved.

See 2 Cow. & Hill’s Notes to Phil. Ev. note 265, p. 518; and authorities there cited

In Norman v. Wells, 17 Wen. 136, Mr. Justice Cowen discusses at large the doctrine of inherent covenants, running with the land, and of an assignable character in contra-distinction to those which are purely personal. See also 4 Kent. 97, 100.