M'Murphy v. Minot

4 N.H. 251 | Superior Court of New Hampshire | 1827

Richardson, C. J.

It has been urged in behalf of the defendant in this case that the plaintiff is not entitled to recover any thing, because the rent was never demanded of Minot. The law on this point is well settled. When a lessor proceeds for a forfeiture or to enforce a penalty he must show a demand of a rent on the very day it was payable. But in an action of covenant no demand is necessary. 18 Johns. 447 Remson v. Conklin; Com. Dig. “Rent,” D. 4; 2 N. H. Rep. 163, Coon v. Brickett.

We are therefore of opinion that this objection to the action cannot prevail.

It has also been urged that this action cannot be maintained, because the particular estate and the reversion having become united in the same person, the particular estate is merged and the rent extinguished. Had the rent in this case been incident to the reversion it is clear that this action could not be maintained. 2 N. H. Rep. 454, York v. Jones. But it is well settled that the rent is not inseparably incident to a reversion. Coke Litt. 143 and 47. a; 2 Bl. Com. 176.

Rent may be reserved upon a grant of a man’s whole estate in which case there can be no reversion.

The case of Webb v. Russell, 7 D. & E. 393, which has been cited by the defendant’s counsel does apply in this case. It was there held that where rent is incident to a particular reversion, when that particular reversion is merged, the rent is extinguished. But in this case the rent was never incident to the reversion. The plaintiff granted her whole estate reserving a rent, and she had no reversion to which it could be incident.

In order to maintain this ground it must be shown that when he who has a reversion takes a lease of the particular estate and covenants to pay rent, such rent is extinguished by the union of the particular estate and the reversion. But this proposition cannot be sustained by any reason or authority, and we are of opinion that this ground of defence fails altogether.

But it is further contended on the part of the defendant that being only a mortgagee lie cannot in any event be held liable for the rent until he took possession under the mortgage, and the case of Eaton v. Jaques, Doug. 438, is cited as an authority. But that decision has been long questioned, 7 D. & E. 312, and in 1819 the question came before all the judges of England, and a great majority were of opinion that when a party takes an assignment of a lease by way of mortgage as a security for money lent, the whole interest passes to him and he becomes liable on the covenant for the payment of rent, though he has never occupied or become possessed in fact. 1 Brod. & Bing. 72, Williams v. Bosanquet et a.

In this state it has been repeatedly decided that a mortgage in fee vests in the mortgagee the whole legal estate ; the necessary consequence of which seems to be that such a mortgagee must be liable for the performance of covenants running with the land. And we think in this case the defendant is liable for any rent that became due after his mortgage was executed.

In considering this case, the question occurred to us whether the liability of the defendant could be affected by the circumstance that the rent was reserved upon a grant of the freehold, while the conveyance to him was in fee. But we find that it has been decided that covenant will lie against the assignee of part of an estate for not repairing his part, for it is divisible and follows the land. Cro. Car. 222 Congham v. King; 2 East, 580.

And we are not able to discover any reason why he who takes a larger estate should not be bound by a covenant running with a less estate which is parcel of the larger.

On behalf of the plaintiff it has been argued that the defendant is liable in this action, not only for the rent which has become due since he became owner of the land, hut the rent which became due before that time.

The cases which have been cited by the defendant’s counsel seem to show that the law is not so.

It is another argument in favor of the defendant, that when the action is against an assignee, it is usual to allege in assigning the breach of the covenant, that the breach happened after the assignment. 2 Chitty's Pl. 191; Lilly 134; 6 Johns. 105, Dubois v. Van Orden; Carthew, 117; 2 Ventris, 231.

It is said in Woodfall, 274 and 338, that an assignee is liable for arrearages of rent incurred before, as well as during his enjoyment ; but he cites no case in which it has been so decided, and offers no argument in support of the propositions,, and we are of opinion that this is not law, and there must be judgment for the plaintiff for the rent which has become due since the 3d of April, 1822.

Judgment for the plaintiff.