116 Cal. 84 | Cal. | 1897
The plaintiff leased from the defendant, Samuels, November 18, 1886, a tract of land in Napa county for the term of three years from May 2, 1887, and entered into possession of said land at the commencement of the term, and at its expiration, May 2, 1890, surrendered the premises to the plaintiff. The lease contained the following agreement: “ It is further mutually covenanted and agreed by and between said parties that said party of the second part may at any time, prior to the going into effect of this lease, go upon
1. The demurrer was sufficient in form. Each of the
2. The demurrer of the defendant Morris was properly sustained. The agreement of Samuels to pay the value of the improvements was not a covenant which could be enforced against one who purchased the land after the breach of such agreement. There was no covenant on the part of the plaintiff to make any improvements. He was merely given the permission to do so, and the agreement of Samuels was only for the payment of money therefor. Such an agreement is personal, and does not bind the assignee of the. reversion. (Bream v. Dickerson, 2 Humph. 126.) Section 1466 of the Civil Code, declares: “No one merely by reason of having acquired an estate subject to a covenant running with the land is liable for a breach of the covenant before he acquired the estate, or after he has parted with it or ceased to enjoy its benefits.” (See, also, Bailey v. Richardson, 66 Cal. 416.) Upon the breach of this agreement the plaintiff had merely a right of action against Samuels which was purely personal, and which was not assumed by Morris when he subsequently became the owner of the land. Nor did the agreement of Samuels have the effect to give to the plaintiff a lien upon the land for the security of this payment. It was held in Ecke v. Fetzer, 65 Wis. 55, in an action of ejectment, that a covenant by which the lessor agreed that at the expiration of the term he would pay for improvements that should be placed upon the land by the
3. The complaint sufficiently states a cause of action against the defendant Samuels. It is urged by the respondent, however, that the demurrer of Samuels was
The judgment is reversed, and the court below is directed to overrule the demurrer of the defendant Samuels, with leave to him to answer within such time as it may designate.
Van Fleet, J., and Garoutte, J., concurred.