This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A right of re-entry for breach of condition subsequent in a lease can not be assigned before breach. While covenants to pay rent could pass with the reversion under Act 32, Henry VIII. 34, the assignee of the reversion could not maintain an action against the tenant unless the tenant had done some act recognizing the grantee of the reversion as his landlord.1 In England attornment was made unnecessary by statute.2 This statute is in some states part of our common law.3 The common-law rule requiring attornment has been very generally abrogated by judicial decision as not in harmony with our theory of land ownership. The assignee of the reversion can generally sue at law on covenants to pay rent without attornment.4 The common-law rule already referred to, that covenants intended to bind the land could not pass with the reversion, was changed in England by statute.5 In some of the United States this statute is part of the common law.6 In others this common-law rule has been changed by judicial decision as not in harmony with the customs and habits of our people or with our general principles of law.7 In others the statute providing that the real party in interest may sue has been held to allow the assignee of the reversion to sue on covenants in the lease intended to protect the holder of the reversion.8 At modern law, therefore, covenants in a lease may be enforced by or against the assignee of the reversion. Thus the tion upon a covenant contained in a lease, against the lessee, though the covenant might run with the land. There was a distinction made between the assignee of the reversion and the assignee of the lease; and while the latter might maintain, and be liable to, an action upon such a covenant, it was different as to the former. To remedy this, the statute of 32 Hen. 8, cap. 34, was enacted, which gave, generally, to the assignee of the reversion the same right of action that the lessor had, upon the covenants in the lease. But this statute did not extend to mere personal and collateral covenants; it embraced those only which touched and concerned the thing demised. It has been decided by this court, that the statute of 32 Hen. 8, cap. 34, is not in force in this state, and that an assignee of the reversion can not maintain an action upon the covenant in the lease. But if the covenant be assignable in equity, so that an action might have been maintained in the name of the assignor, or relief obtained by a suit in equity, our code assignee of the reversion is liable on covenants of his assignor,9 as for quiet enjoyment;10 or on a covenant giving the tenant an option to purchase,11 or to renew;l2 or imposing on the lessor the duty to pay for improvements.13 So the assignee of the reversion may enforce a covenant by the tenant to insure,14 of may enforce a forfeiture of a prior lease.15 The general rule, therefore, is that both rights and liabilities pass to the assignee of the reversion.
8 Gamhart v. Finney, 40 Mo. 449, 93 Am. Dec. 303.
9 Connecticut. Benedict v. Everard, 73 Conn. 157, 46 Atl. 870.
Illinois. Sexton v. Storage Co., 129 111. 318, 16 Am. St. Rep. 274, 21 N. E. 920.
Kentucky. Tranbe v. McAdams, 71 Ky. (8 Bush.), 74.
Nebraska. Hogg v. Reynolds, 61 Neb. 758, 87 Am. St. Rep. 522, 86 N. W. 479. (An assignee of an undivided one-half of the lease was here held liable for only one-half of the rent.)
Ohio. Sutliff v. Atwood. 15 O. S. 186.
Wisconsin. Wittman v. Watry, 45 Wis. 491.
A sub-tenant is not liable to the original lessor for rent. Dunlap v. Bullard, 131 Mass. 161; St. Joseph, etc.,
Ry. v. Ry., 135 Mo. 173, 33 L. R. A. 607, 36 S. W. 602; Holman v. De Lin-River-Finley Co., 30 Or. 428, 47 Pac. 708.
10 Washington Natural Gas Co. v. Johnson, 123 Pa. St. 576, 10 Am. St. Rep. 553, 16 Atl. 799.
11 Thomas v. Council, 5 Pa. St. 13. 12Martineau v. Steele, 14 Wis. 272.
13 Woodland Oil Co. v. Crawford, 55 O. S. 161, 34 L. R. A. 62, 44 N. E. 1093.
14 Fontaine v. Lumber Co., 109 Mo. 55, 32 Am. St. Rep. 648, 18 S. W. 1147.
15 Johnson v. Sherman, 15 Cal. 287, 76 Am. Dec. 481; Bell v. Protective League, 163 Mass. 558, 47 Am. St. Rep. 481, 28 L. R. A. 452. 40 N. E. 857; Washington Natural Gas Co. v. Johnson, 123 Pa. St. 576, 10 Am. St. Rep. 553. 16 Atl. 799.
16 Springer v. De Wolf, 194 111. 218, 88 Am. St. Rep. 155, 56 L. R, A. 466, 62 N. E. 542.
1 Doe v. Smith, 8 Ad. & El. 255. This was known as attornment. It was a relic of the feudal theory of the personal relation existing between landlord and tenant.
2 4 Anne, c. 16.
3 Baldwin v. Walker, 21 Conn. 168.
4 Illinois. Graham v. Le Sourd, 99 111. App. 223.
Michigan. Perrin v. Lepper, 34 Mich. 292.
Minnesota. Jones v. Rigby, 41 Minn. 530, 43 N. W. 390; Ohio Iron Co. v. Iron Co., 64 Minn. 404, 67 N. W. 221.
Ohio. Smith v. Harrison, 42 O. S. 180.
Vermont. Pelton v. Place, 71 Vt. 430, 46 Atl. 63.
5 32 Hen. VIII., c. 34.
6 Fisher v. Peering, 60 111. 114; How-land v. Coffin, 29 Mass. (12 Pick.) 125.
Contra, Crawford v. Chapman, 17 Ohio 449.
7 Perrin v. Lepper, 34 Mich. 292.
8 "In consequence of the rule of the common law, that a chose in action was not assignable, the assignee of a reversion could not maintain an acof civil procedure operates upon the remedy even more extensively than the statute of 32 Hen. 8, cap. 34. For whether the covenant be collateral, or inhere in the land, if it be assigned, the assignee not only may, but, as the party beneficially interested, must sue in his own name." Masury v. South-worth, 9 O. S. 340, 346.