3 Barb. Ch. 52 | New York Court of Chancery | 1848
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
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.
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
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
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.)