144 P. 572 | Or. | 1914
delivered the opinion of the court.
“It is a well-settled rule that, by virtue of privity of estate between the assignee of a leasehold and the lessor, such assignee becomes personally liable to the lessor, while he holds the estate as assignee, for the performance of the lessee’s covenants, which run with the leasehold estate”: 18 Am. & Eng. Ency. Law (2 ed.), p.668.
To the same effect is this provision in 24 Cyc., page 1179:
“Where a lessee assigns his whole estate in all the demised premises, the assignee is liable to the lessor for the whole of the rent reserved in the lease. ’ ’
The same principle is applied in Culver v. Van Valkenburgh, 60 Or. 447 (119 Pac. 753); Leadbetter v. Pewtherer, 61 Or. 168 (121 Pac. 799, Ann. Cas. 1914B, 464). And he thereby becomes the party to the lease and is liable for the whole term. Neither is possession thereunder necessary, and he cannot discharge himself from such liability without the consent of the lessor.
“If said premises were destroyed or rendered unfit for occupancy by fire, * * the defendant would not be liable for any rent * * from the time of such fire.”
The rule is that, if the tenant expressly covenants without limitation or reservation to pay rent for a term of years, he is not released from that obligation by the destruction of the building by accidental fire: Harrington v. Watson, 11 Or. 143 (3 Pac. 173, 50 Am. Rep. 465, note). And the instruction was properly refused.
“Where a lessor seeks to hold one found in possession of the land liable as assignee for rent, or on the covenants in the lease, he is not required in the first instance to prove the assignment to the party in possession, as the law presumes that a person other than a lessee found in possession holds as an assignee.”
There is no merit in the request for a directed verdict. Instructions 3, 4 and 5 were justified by the rule that, when a third party is in possession of leased premises under the lessee, the law presumes that they have been assigned by the lessee to such third party: 24 Cyc. 1181.
There being no error committed by the Circuit Court, the judgment is affirmed.
Affirmed. Rehearing Denied.