13 Wend. 608 | N.Y. Sup. Ct. | 1835
By the Court,
It is conceded by the plaintiff’s counsel, that previ .us to the revised statutes, this action could not have been sustained; but he insists that the suit in its present form is authorized by those statutes.
The section relied on, or so muclrof it as relates to this case, is in substance as follows: The grantees of any demised lands, rents, or of the reversion thereof, shall have the same remedies by entry, action, distress, or otherwise, for the non-performance of any agreement contained in the lease so assigned, or for the recovery of any rent, as their grantor had or might have had if such reversion had remained in such grantor. 1 R. S. 747, § 23. In other words, that the grantee shall have the same rights and remedies uj)on the lease,ox by entry or distress, which the grantor had. The clause in the revised laws of 1813,to which reference is made, 1 R. L. 363, § 1, is substantially as follows, so far as this question is concerned : All persons being grantees or assignees by any other person or persons, of any lands,rents or reversions of the same, shall have and enjoy like advantages against the lessees,their assigns, or representatives, by entry for non-payment of rent j and shall have the same advantages and remedies by action only, for not performing other conditions contained in their leases, against their lessees, cfcc. as the lessors and grantors themselves might have had, in like manner and form as if the reversion had remained in the same lessors or grantors. I confess I cannot see the difference, or that any greater
The grantee is substituted in the place of the grantor, for the purpose of any remedy by action, entry,distress or otherwise, for the non-performance of any agreement contained in the lease, of for the recovery of the rent; that is, he becomes privy in estate and in contract, and becomes substituted in the place of the grantor as to any remedies against parties or privies on the other side ; but that gives him no remedy in his ownname upon any collateral contract made with his grantor. The circumstance of this guaranty being written upon the back of the lease,does not make it an agreement contained, in the lease, any more than if it had been written upon a separate paper. Neither does the fact, that the rents in question are the subject of the-guaranty,- make the guarantors parties or privies to the lease or to the demised premises. Suppose these guarantors had, by way of security,mortgaged their own estate, real or personal;- would such mortgage pass by a grant of the demised premises, merely because the mortgage was given to secure the rent ? and if accompanied by a bond, could the assignee maintain an action upon it in his own name? Surely he could not. Neither can he upon the covenant in question. The grantee may maintain any action upon the lease, or entertain any proceeding for the rent against the party to the lease or his representatives, which the grantor could if living; hut the statute gives him no such right upon any other sealed instrument. Had these guarantors become lessees with Johnson, they would have been parties, and of course liable to an action by the grantee. So, probably, should the present plamtiff bring an action in the name of the executors of the lessor, I see no difficulty in maintaining the suit ■ but the present suit cannot be sustained.
Judgment affirmed.
