Hagar v. Buck, 44 Vt. 285

Hagar v. Buck

44 Vt. 285 | Vt. | 1872

The opinion of the court was delivered by

Wheeler, J.

The clause in this lease concerning the reduction of rent and conveyance of the premises, is in effect a covenant by the lessor, that upon the payment of any part of five hundred dollars, in even sums of fifty dollars, the rent should cease in proportion; and that upon the payment of the whole of that sum, the rent should cease altogether and he would convey the *289premises by deed of warranty. Although this covenant did not bind the lessor to the doing of anything upon the land itself, it did bind him to that which would affect the estate granted by the lease in respect to the time it should continue, and upon what rent, and by providing for an enlargement of it into an estate in fee. This covenant was a chose in action, and apart from the estate in the land would not have been assignable at law. It could not pass to an assignee so that an action at law could be maintained upon it in the name of the assignee, unless it would pass, as a part of and with the estate of the lessee in the land: in other words, unless it would run with the land. Sometimes it has been laid down that a covenant in a lease would not run with the land unless it had reference to something to be done upon the land itself: but this rule does not seem to be strictly correct. In Bally v. Wells, as reported in Wilmot’s Opinions, 341, Cowen, J., in Norman v. Wells, 17 Wend., 136, Wilmot, Ch. J., said of the running of covenants with the land: “ The covenant must respect the thing leased.” In Norman v. Wells it seems to have been determined — as set forth upon an able and exhaustive examination of many cases upon the subject in an opinion by Cowen, J. — that a covenant, in a lease touching or concerning the thing demised as affecting the value of the term or of the reversion, or influencing the rent, would run with the land. In Van Horne v. Craine, 1 Paige, 455, Chancellor Walworth expressly held that a covenant in a lease to convey during the term would run with the land. This covenant respected the thing leased. It affected the value of the term and of the reversion, and influenced the rent. It related to and was connected with the estate in the land granted by the lease. That estate was a medium which would create a privity between any person who should hold it and any other person who should hold the estate of the lessor. It took the quality of non-negotiability away from the covenant, and the covenant “ in a wf v 'ag, dependent state,” would follow it wherever it should go. Wally v. Wells (before cited), S. C., 3 Wils., 25. The estate of éringo in the land, which he took by the lease, was, in commc. /ith all estates and interests in land, assignable by our laws; and although assignees were not named in this covenant, the covenant passed by *290tbe conveyance of Meringo with the estate in the land to Mary Ann Turner, and she stood in respect to this covenant as if it had been made directly to her. “ Covenants which run and rest with the land, lie for or against assignee at common law, though not named. They stick so fast to the thing on which they wait, that they follow every particle of it.” Wilmot, Ch. J., in Bally v. Wells, (before cited).

This consideration is sufficient to dispose of the question made by the defendants as to the right of the orator to stand upon this, covenant in this suit. But if not, covenants that do not run with thr land may be assigned in equity so as to pass the right to enforce the' by action in the name of the covenantee to the assignee. 1 Smith L. C., 179, Field, J.; Willard v. Tayloe, 8 Wall, 571. An as-signee of a chose in action, who has the right to proceed at law upon, it in the name of the assignor, has the right to proceed upon it in equity in his own name, in cases proper to be proceeded with in courts of equity. If this covenant had not passed with the estate in the land from Meringo to Mary Ann Turner, his conveyance would have operated as an equitable assignment of his interest in it and of his right to enforce it in his name to her; and a suit in equity in his name for such relief as is sought in this case would have been proper. The orator, being the personal representative of Mary Ann Turner, could maintain this suit in equity in his own name, as well as the original covenantee could hare maintained it if no assignment or conveyance had been made.

The lessor covenanted by this covenant that he would give the lessee a warrantee deed of the premises whenever the lessee should pay him |500. Such a deed would convey the whole estate of the lessor in the premises to the lessee, free from further obligations on the covenants concerning repairs of buildings or manner of occupation. While the lease should continue in force, and the rent be paid, the lessee, or any one who had his interest and estate, could satisfy all just claims of the lessor to the premises by payment to him of $500. Upon the testimony, it is plain that neither the lessee nor the assignee of. the lessee fulfilled the covenant to build and keep in repair, and that the lessor had the right in a legal manner to enter and put an end *291to the lease. But the lessor waived this right until the right of Mary Ann. Turner, the orator’s intestate, to have the premises upon payment of $500, had become quite valuable. Perhaps by taking the last rent that he took, he did not waive the right to enter for want of repair afterward, although the want of repair at the time he took the rent was substantially the same as at the time ofentry. Probably he did not. But if he did not, his entry was made lawful by his taking advantage of a forfeiture which would work a great hardship to the tenant.

Whenever a forfeiture is taken advantage of that works a hardship, and full compensation can be made by the person against whom it is wrought, to the one who has taken advantage of it, courts of equity generally relieve against it, upon the making of such compensation. At the time of this entry, five hundred dollars, with the amount of the accruing rent, would have been a full satisfaction of all the claim that the lessor had to the premises, and the payment of that sum and the amount of this rent to him then, would have extinguished all his right to the premises, and have saved the forfeiture. In contemplation of law as administered in courts of equity, full compensation could be made for the non-payment of those sums at that time by the payment of interest, or of rent in lieu of interest, upon the sum of five hundred dollars. When the orator tendered five hundred dollars, with twenty-one dollars for the half year’s rent accruing at the time of the entry, and which had not fully accrued at the time of the tender, he offered full compensation to the defendants. No question is made but that defendant, Griffin, a grantee of the lessor since the entry, stands in the same right that the lessor does. Upon the tender, therefore, the orator became entitled to a conveyance of the premises, and to the occupation of them. The orator alleges in his bill that he and the mother of the intestate, who is the heir, have kept possession of the premises, and does not allege that the defendants have received any rents or profits of the premises, therefore no accounting seems to be necessary.

The decree of the court of chancery, which was pro forma, is reversed, and the cause is remanded to that court with directions to enter a decree for a conveyance of the premises to the orator, *292as administrator, and restraining tbe defendants by injunction from interfering with tbe occupation of tbe premises, or with the rents', and profits of them, and directing tbe payment of the sum tendered to tbe defendants.