30 Mass. 33 | Mass. | 1832
delivered the opinion of the Court. It appears by the agreed statement of facts, that the plaintiff had a right of dower in one half of a mill situated at Pawtucket in the county of Bristol, but that her dower had never been assigned her by process of law or otherwise. . In this state of things she entered into the contract, described in the statement of facts, and called a lease, with Jabel Ingraham, who, it appears by the argument, though not so distinctly stated in the facts, held the estate in which this right of dower existed. Upon this contract he covenanted to pay her by way of rent, $ 190 per annum for seven years, for her interest in the estate. The action is covenant, and is brought against the defendants as assignees of the lessee, liable as such to pay the rent reserved upon this lease.
The action is founded on the rule of law, that where there is a lease for a term of years, upon which rent is reserved, he who takes an assignment of the estate thus leased, takes it subject to the payment of the rent, and the law raises a liability on his part to pay the same rent as his assignor, the original lessee, had covenanted to pay, so long as he holds the estate thus leased, and there being such a legal liaoility, the assignee is liable to be sued as such, on such covenants. The covenant, or liability to perform the covenant, is said to run with the leasehold estate or interest, and to bind all privies.
But the Court are of opinion, that in the present case the widow had no estate or interest, which could be the subject of a lease ; that a right of dower is a personal right, which, until dower assigned, by the act of law, or by the act of the party bound to assign it, gives no estate. It follows, therefore, that no estate or interest passed by the instrument, which could pass to an assignee, or with which the covenant for an annual payment could run. The contract might be a legal and a very equitable contract between the parties; the widow entitled to dower might agree with the general owner of the estate, to forbear the exercise of her right to have dower assigned for a certain term, and this was a good consideration for an annual payment. But such a contract was not in strictness a lease, because no estate passed by it, and for the same reason, such annual payment could not be deemed a rent.
This instrument cannot operate as a release, as contended for in the argument, because it would be manifestly against the plain intent of the parties. A release must operate presently, and absolutely. But it is quite clear, that it was not the intention of the plaintiff to relinquish her right forever, but to transfer the use of it, or to speak more accurately, to forbear the exercise of it, for a term of years, at the expiration of which it was to revert to her.
Nor does the doctrine of estoppel, or the maxim of nil habuit in tenementis, apply. Here it appears on the face of the instrument itself, that the plaintiff intended to transfer to Jabel Ingraham, by the instrument called a lease, all the right which she had to have dower assigned to her; and it is a general rule governing the doctrine of estoppel, that where the truth appears on the face of the instrument itself, upon which the estoppel is alleged to arise, no estoppel is wrought as to the fact thus appearing. Here it appears by the
Nor are the defendants estopped by the payment of a quarter’s rent to the plaintiff. By the statute of 1816, e. 84, a widow entitled to an unassigned right of dower, is entitled to claim one third of the rents and profits of such estate, until the heir shall assign and set out to her her dower. From the time at which they took the estate, therefore, they were liable to pay to her one third of the rents, and this payment might well have been made in pursuance of this legal obligation, and of course it does not necessarily follow from it that the defendants admitted themselves liable as assignees of the covenant; and all estoppels are to be construed strictly.
Judgment on the verdict for the defendant.
