88 Md. 234 | Md. | 1898
delivered the opinion of the Court.
This suit was instituted in the Superior Court of Baltimore City by the appellant against the appellee. The appellant by a deed under seal leased to one Charles Miller certain premises for the period of five years from September the fourteenth, eighteen hundred and ninety-five, at and for an annual rent of twelve hundred dollars payable in equal monthly instalments. Miller covenanted to pay the rent, and he likewise covenanted that he would not assign or sub-let the premises without the written permission of the lessor. On the same day the lessee, with the written assent of the lessor given by her agent, assigned the lease, “ with all its covenants, terms and conditions,” to the appellee, a body corporate. On June the thirtieth, eighteen hundred and ninety-seven, the appellee assigned the lease to John W. Jones. This suit was brought on August the fourth, eighteen hundred and ninety-seven, to recover from the appellee four instalments of r.ent which fell due in April, May, June and July, eighteen hundred and ninety-seven. To the declaration three pleas were filed. The first and second need not be alluded to. The third, after confessing the assignment of the lease by Miller to the appellee, averred
The declaration presents the case of a lessor suing an assignee of a lease for the non-payment of rent covenanted to be paid by the lessee. That and that alone is the cause of action declared on.
The liability of an assignee of a term to the original lessor for rent grows out of and is founded on the privity of estate, in the absence of an independent agreement; and such liability continues, when dependent upon privity of estate alone, just so long as that privity exists. During the continuance of that privity the assignee is liable upon all covenants that run with the land, such as covenants for the pajunent of rent and the like, and for any breach of such covenants the lessor may sue the assignee during the continuance of the assignment. As his liability, in the absence of an independent agreement, arises wholly from his relation to the land, it results and is everywhere held, that when he- severs that relation, he puts an end to his liability for any future breaches of covenants contained in the lease; and it is equally well settled in this State, though a different doctrine prevails in some other jurisdictions, that an action at law by a lessor against an assignee for a breach of a covenant running with the land, if not brought before the assignee divests himself of the estate, cannot be maintained against him at all. Hintze v. Thomas, 7 Md. 346; Donelson v. Polk, 64 Md. 504; Bixler v. Con
This being the extent of an assignee’s liability to the original lessor where no independent agreement is relied on, and the declaration in the pending case, proceeding, as it does, wholly and exclusively upon the liability arising out of the privity of estate existing between the lessor and the assignee; the plea which confessed the assignment but set up by way of defence that the privity of estate had been terminated by the subsequent assignment to Jones before the suit had been brought, presented, if true, a complete and an insuperable bar to the action. There was obviously, then, no error in overruling the demurrer interposed to it. And this brings us to the second and third replications that were demurred to by the defendant.
The second replication avers that the brewing company did not, with the consent in writing of the plaintiff, assign all its right and interest in the lease to Jones. We are dealing now entirely with the pleadings. The declaration alleges that Miller, the lessee, covenanted that he would not assign nor sub-let the premises without the written permission of the lessor; and it further alleges that Miller did with the written consent of the lessor, assign the lease with all its covenants, terms and conditions, to the brewing company. The covenant prohibiting an assignment was, as is conceded by and alleged in the declaration, unqualifiedly waived when the assignment was made by Miller, and having been thus waived, that is, .waived without the superaddition of a restriction on subsequent assignments, it was gone forever and therefore"’Was not binding on the brewing- company. This principle was announced as early as the reign of Elizabeth in Dumpor’s case, 4 Coke 119. Whilst Sir James Mansfield observed that the profession had always wondered at Dumpor’s case, still he held in Doe
The third replication avers that by an assignment under seal dated September the fourteenth, eighteen-hundred and ninety-five, and executed by Miller, the-lessee, Mrs. Reid, the lessor, and the brewing company, the assignee, said lease with all its covenants, terms, and conditions, was assigned and set over to the brewing company. This was demurred to. If it was designed by this replication to set up and to rely on an independent agreement between theAessor and the assignee, and thus to found a right of recovery on a distinct contractual relation between them, it is bad, as a. replication, because a clear departure. And it is a departure because the declaration proceeds upon the-single ground of a liability arising out of the privity of estate and not out of a privity of contract.' The replication presented no issue at all if it did not mean this, for it merely repeated precisely what had been admitted in the plea and averred in the declaration. There was certainly, therefore, no error in sustaining the demurrer to it.
This view of the legal effect of the assignment by Miller, and the conclusions we have reached and expressed upon the questions of pleading first discussed, cover all the issues presented by the record, and sufficiently indicate that there was no error committed in the rulings on the prayers for instruction to the jury. The judgment will, therefore, be affirmed.
Judgment affirmed with costs above and below.