Trustees of Dartmouth College v. Clough

| Superior Court of New Hampshire | Jul 15, 1835

RichaRdson, C. J.,

delivered the opinion of the court.

We have attentively considered this case, and are of opinion that there must be judgment on the verdict.

The case stated in the declaration is that the plaintiffs, in the year 1808, made a lease to the Cliffords of certain land in Warren for nine hundred and ninety-nine years, reserving a certain yearly rent, and that in the year 1825 all the interest of the Cliffords in the premises came to the defendant by assignment; and the plaintiff's claim to recover of the defendant, as such assignee, all the rent reserved in the lease which became due between January 1, 1831, and January 1, 1834.

It was supposed by the counsel of the plaintiffs, at the trial, that the plea of nil debet was an admission of the lease from the plaintiffs to the Cliffords; and no evidence on that point was produced. But no case has been cited, nor have we found any case, that gives the slightest countenance to the supposition, that the plea was in law an admission of that lease. On the contrary, it is well settled that nil debet puts in issue the whole declaration. Even in cases where it is not a proper plea, if it be pleaded, and the plaintiff, instead of demurring, takes issue upon it, he will have to prove every allegation in his declaration. 1 Chitty's Pl. 478; 2 Starkie's Ev. 140, note (u) and 463. The plaintiffs, then, failed in this respect in a point essential to be proved, in order to entitle them to a verdict.

But there are other defects in the case of these plaintiffs. In order to maintain debt or covenant for rent there must be either privity of contract or privity of estate between the plaintiff, and defendant. 3 Coke 23, Walker's case.

Between the lessor and the lessee there is both privity of contract and privity of estate, so long as the lessee retains the term. And the original lessee is liable to an action of covenant for the rent, although he may have assigned all his interest to some third person with the assent of the lessor. For even in that case the privity of contract continues between the lessor and the lessee. 1 Chitty's Pl. 36.

But if the lessee assign the term, with the assent of the lessor, after this, debt does not lie against the lessee. 1 Chitty's Pl. 106; 1 Saunders 241, note 5; 4 D. & E. 98, Auriol vs. Mills.

When thp lessee has assigned to a third person his whole term, both debt and covenant lie against the assignee on the privity of estate. 2 East 580; 12 Pick. 125, Howland vs. Coffin; 9 Pick. 52.

And he who takes an assignment of the whole term, even by way of mortgage, is liable for the rent, although he may never have entered and taken possession. 4 N. H. R. 251, McMurphy vs. Minot; 5 Com. Law R. 72; 7 East 335, Turner vs. Richardson.

An assignee of the whole term is only liable for the rent while he continues in possession under the assignment. If he assigns over to another all his interest, he is not liable for the rent, although he may continue in possession. Buller’s N. P. 159; Carthew 177, Tovey vs. Pitcher; 1 B. & P. 21, Taylor vs. Shum; Douglas 461, note, Walker vs. Reeves; and ibid. 735, Chancellor vs. Poole; Woodfall's Landlord & Tenant 280, 281.

There is a material difference between an assignee of a term, and an under-tenant.

He only is to be considered as an assignee of the term who takes the whole estate of the lessee in the land, or in some part of the land. 17 Johnson 70; 3 Wilson 234; Woodfall 276—280; 11 East 52; Com. Dig., “ Debt," E. & F.; Cro. James 411; Cro. Eliz. 633; 2 Levintz 231.

When the lessee conveys to a third person the whole or a part of the land for a portion only of his term, such third person is not an assignee of the term, but an undertenant. Woodfall 276, and 287, 288.

There is no privity of contract or of estate between the original lessor and an undertenant; and the undertenant is not liable to the original lessor in any form of action for rent. 1 Chitty's Pl. 36; Douglas 183; Woodfall 288.

In this case, it was proved on the part of the plaintiffs that the defendant had been in possession of a part of the land, and that he had paid a part of the rent reserved on the lease from the plaintiffs to the Cliffords, for two years. This was prima facie evidence that he was an assignee as to part of the land. But it was only prima facie evidence. And there was nothing in the case that could preclude him from showing that he was only an undertenant. His possession under his lease was notice to all the world of the nature of his interest. It was enough to make it the duty of the plaintiffs to enquire into the nature of his title before they brought their action.

As it was clearly shown that the defendant was a mere undertenant, it is very certain that this action cannot be maintained.

Judgment on the verdict.