108 Mass. 556 | Mass. | 1871
To maintain an action for rent requires privity of contract or privity of estate. Either will suffice, if rent is due.
When a lease is assigned, and the assignee enters under it, he becomes tenant of the lessor; he is bound by all the covenants of the lease which are not personal to the lessee, and he is liable to the lessor for all rents which accrue while he holds the estate. If there is no express covenant for the payment of rent, contained in the lease, then the covenant implied from the reservation of rent binds the lessee, and “ runs with the land ” so as to bind the
In the present case, the defendant entered into the enjoyment and control of the leased premises, under what purported to be an assignment of the lease. If that transaction operated in any manner to transfer to the defendant the entire leasehold estate, then he was in as assignee, and may be held by the lessor for the rent which fell due while he so held the estate.
The defendant insists that the lease, being under seal, could be assigned only by an instrument under seal. This rule, applied to an assignment of the instrument itself, as a contract, is well settled at law. Wood v. Partridge, 11 Mass. 488. Brewer v. Dyer, 7 Cush. 337. Bridgham v. Tileston, 5 Allen, 371. If, therefore, a leasehold estate can be transferred only by an assignment of the instrument by which it was created, this objection must he held to be decisive.
But we do not so understand the law. A lease, by whatever form of instrument it is made, conveys to the lessee an estate or interest in the land. He may in turn convey to another any subordinate interest, or his entire estate, in any appropriate form, without regard to the form in which he acquired his own title. The leasehold estate may be transferred by devise ; by sale on execution as a chattel; Gen. Sts. o. 133, § 49; or sale by an administrator as personal assets. In all these cases the purchaser becomes bound to the lessor to pay the rent and perform the covenants that run with the land, because the law imposes that obligation upon him by reason of his succession to the estate of the lessee. The same result follows from any transfer by the lessee of his entire estate. A seal is not essential to such transfer, even of a lease for more than seven years. Ho written instrument is necessary, except to satisfy the statute of frauds. Gen. Sts. c. 89, § 2. Even if the provisions of § 3 are applicable to the assignment of a lease, as well as to the creation of an estate by lease, a seal is only required to give it effect against parties other than the assignor, his heirs and devisees, and persons having actual notice
The real question, then, is whether this instrument is sufficient to satisfy the statute of frauds, as an assignment of an estate or interest in land.
It is indorsed upon and refers to the original lease; and the lease was delivered with it to the assignee. The description of the premises, the terms upon which they are to be held, and the intent to convey the estate are thus all made to appear by the writing. “ All our right, title and interest in and to the within lease ” includes whatever leasehold estate the assignor might hold by virtue of that lease. If a seal had been attached, there would be no question of its operation to convey the estate of the assignor in the land described in the instrument referred to. Patten v. Deshon, 1 Gray, 325. Blake v. Sanderson, Ib. 332.
So far as it affects the sufficiency of the writing, under the statute of frauds, we do not see that it makes any difference that the instrument referred to is under seal, while the transfer is not. The reference is not merely to the instrument itself as the subject matter of the assignment, but also to its contents as defining the subject matter upon which the assignment is intended to operate.
We are of opinion that the writing relied on as an assignment in this case was sufficient to satisfy the statute of frauds; and that between the parties a seal was not rendered necessary to its operation as an assignment, either by reason of the length of the term, or from the fact that the assignor acquired his title by a lease under seal. Taylor Landl. & Ten. § 427, and cases cited in notes.
It was not necessary that the defendant should execute any writing, or make any express agreement. • His obligation is implied by law from his acceptance of the assignment, and his entering upon the enjoyment of the estate.
The report states such an acceptance and entry by the defendant. His employment of the former agent of his assignor to collect the rents for him was a sufficient entry. He is liable, then, for the rent which fell due July 1, 1870, for the preceding
It is stated in the report that “ on or about May 18, 187Ó, the defendant executed an assignment of said lease,” by a writing not under seal, to one Newhall. If Newhall entered under that assignment, and the defendant ceased to collect the rents, control the premises or have any interest therein, before the end of the quarter, he would not be liable for any rent which should after-wards fall due. But the case does not find that Newhall ever entered or collected the rents under his assignment; nor that the defendant at any time ceased to collect and receive the rents through his agent; and any inference to that effect would be inconsistent with the distinct statement of the report that upon the entry of the defendant under his assignment from the lessees “ the rents were thereafter collected by said agent and paid over to the defendant.”
Upon the report, we must assume that the defendant’s evidence went no farther than to show a formal instrument of assignment without change of possession. That would not be sufficient to relieve the defendant from his liability as assignee of the lessees.
It is stated generally in the text books, that an actual entry upon the demised premises, by an assignee of the lease, is not requisite in order to charge him with the performance of covenants running with the land. But we think this proposition will' hold good only in respect of assignments by deed recorded and delivered ; which are usually regarded as effecting a transfer, not only of title, but also of the legal possession. An assignment without deed, as of a chattel interest only, requires some act of entry, or change of actual possession, to complete its operation and divest the assignor of responsibility which arises from the holding of the estate. Taylor Landl. & Ten. §§ 449-451.
It was not necessary for the plaintiff to assent to the assignment, or recognize the assignee as his tenant, other-wise than by his suit for the rent.
The report shows that the defendant became responsible to the plaintiff as assignee of the lessees, and does not disclose any facts sufficient to defeat his action for the rent which thereafter became due upon the lease. According to the terms of the report, therefore, the plaintiff is to recover judgment for the full quarter’s rent, $1450, and interest.
' Judgment for the plaintiff accordingly.