15 Vt. 479 | Vt. | 1843
The opinion of the court was delivered by
The case must turn upon the effect, and operation, of the deed from Charles W. Watkins to the defendant. A question is made in the argument, whether that deed operated at all upon the leasehold interest of the grantor. It was a deed of release and quitclaim, in common form, of all the grantor’s “ right, title, interest, property, estate and demand, in, and to, certain tracts, pieces and parcels of land,” &c. And, according to the operation always given to this species of conveyance, in Vermont, every estate and interest which the grantor had in the lands described,
Admitting, for the present, that the deed had no farther operation upon the leasehold estate, or did not convey the whole of it, it still operated as an assignment, pro tanto, and would regularly subject the defendant, for rent subsequently falling due. It has, indeed, been truly said, that the liability of the assignee, to the obligations created by the original lease, results from privity of estate, and not alone from privity of contract, like the obligations of the immediate parties to the lease ; and that if the assignee acquires but a part of the premises demised, the privity of estate between him and the lessor is limited accordingly. But to admit, as a conclusion from this, that he is not liable in debt, or covenant, for rent becoming payable whilst he holds under the assignment, would be to enable the tenant greatly to abridge the remedies of his lessor, by assigning the premises in parcels to different persons. There may be a doubt, ( which we have not found it necessary, in this case, to solve) whether the whole rent may be declared for against such an assignee, leaving him at liberty to defend in reference to his part of the premises, or to plead in abatement the non-joinder of other persons liable, according to the intimations in 1 Saund. R. 519, note ; 5 B. & C. 482; 2 Chit. PI. 552, note ; Saund. PI. &. Ev. 623, 625; or whether a part only should be demanded, on the principle of apportionment. It is familiar law, that rent may be apportioned, though this is generally spoken of as the result of some act on the part of the lessor, or of a stranger. It happens when the lessor grants the re
The next objection proceeds upon the same construction of the deed to the defendant, by supposing it not to convey the whole of the leasehold estate. Upon such a construction of the deed, the averment in the declaration, that all the estate, &c., came to the defendant by assignment, is not literally satisfied by the proof. And this is urged as a fatal variance. The allegation should, doubtless, be understood to mean, not only an assignment of the whole estate in quantity of interest, but of that estate in all the land. Most of the cases upon the effect of such an allegation, have related to the for
It remains to be determined, whether the deed to the defendant did actually include all the leasehold premises ; in other words, all the premises assigned in dower to Rebecca Watkins, one of the lessors. Her dower consisted of certain portions of the buildings and privileges of the mansion-house, and a tract of 37 acres on the west side of the farm. The reversion of this dower was, afterwards, divided into six parts, in the division of the farm, upon the death of Elias Watkins, the younger, Charles W. Watkins, the plaintiff’s lessee, took it in the buildings, where his portion of his father’s estate was located, and his five brothers and sisters took it in the 37 acres ; which, for that purpose, was divided into five distinct parts or lots. The deed in question is to be construed with a due reference to this condition of things. It professes to convey the share set to the grantor in the division of his father’s estate, referring to the report of the committee of division, on record, for bounds, &c., — his share jn the reversion of the land, of which his father’s wid* ow was endowed, — and “ one other piece, set off by gaid ‘ committee, of the reversion of the widow Rebecca Howe, •'late widow of Elias Watkins, the elder, deceased, having ‘ reference to the records aforesaid, for the particular bounds ‘ thereof. ” Now it does not appear that Charles W. Watkins had any interest in either of the lots, into which the 37 acres was divided, except his leasehold estate, which extended through the whole of it. Hence, the deed is apparently inapplicable to anything but the entire 37 acres, which was truly “ of the dower of Rebecca Watkins, ” not heing the whole of it. And though the word “ reversion ” is used, instead of dower, the latter is obviously intended ; for the widow had dower but no reversion. If the grantor meant
The judgment of the county court is, therefore, reversed.