99 Mass. 15 | Mass. | 1868
This is an action of contract by a lessor, against the assignee of his lessee, to recover an instalment of the rent reserved in the lease. The declaration sets forth the lease by the plaintiff to Russell and Batcheller, the assignment by them to the defendant, and the assent of the plaintiff thereto in writing indorsed thereon; and avers that the defendant owes the plaintiff $83.33 “for the use and occupation of the premises according to the terms of the covenants of said lease.” This sum is one month’s rent of the premises demised, which became due, according to the terms of the lease, on the first day of May 1866. The lease, assignment and possession of the demised premises would make a primd facie case in favor of the plaintiff.
The right of a lessor to demand and receive rent from the assignee of the lessee is not a right founded on privity of contract, but on privity of estate. To support it, there must be, not an underletting, but an assignment of the whole estate of the lessee ; and then the covenant to pay rent is a covenant which runs with the land. But, as the rent is an incident of the reversion, if the lessor assigns or otherwise conveys his reversion, he cannot have any claim for rent subsequently accruing; but the right to the rent is transferred to his assignee. 1 Saund. 241, note. The assignee of the lessee is only answerable upon the covenants in the lease while he is assignee; and the lessor can only enforce them against him while he continues to own the reversion. Though the tenant or his assigns cannot deny his landlord’s title under which the demise was made, yet he may show that it has terminated, been transferred or otherwise extinguished. Jackson v. Davis, 5 Cowen, 123, 135. Armstrong v. Wheeler, 9 Cowen 88. Taylor v. Shum, 1 B. & P. 21. Birch v. Wright, 1 T. R. 378. Burden v. Thayer, 3 Met. 76.
In applying these principles to the facts set forth in the bill of exceptions, we find that the plaintiff made the lease to Russell
The plaintiff’s right to the rent having wholly ceased, the defendant was not liable to him “ for the use and occupation of the premises according to the terms of the covenants of said lease.” This makes it unnecessary to consider the further objection to the maintenance of the action, that the defendant was evicted from a part of the demised premises, during the term assigned to him, by Allen with the consent of the plaintiff. Leishman v. White, 1 Allen, 489.
The ruling at the trial in favor of the defendant was right, and the judgment must be Exceptions overruled.