§ 1273. Where the lease is assigned1 by the tenant to a third person, the original tenant still continues liable to the lessor on all his express covenants, even though the lessor assent to the assignment and receive rent from the assignee.2 In case, therefore, of failure by the assignee to pay rent, the original tenant is liable therefor to the lessor in an action of covenant.3 But he is said not to be liable on his implied covenants, when the lessor assents to the assignment.4 And such assent is implied from the fact that the lessor accepts rent from the assignee, or recognizes him as his tenant by any other act.1 The assignee on his part is not only liable to the tenant, but also to the original lessor on all covenants real annexed to the estate and running along with it,2 and for all express covenants in the lease,3 except where the breach has happened before his interest accrued.4 There is an implied promise on the part of each successive assignee of a lease to indemnify the original lessee against breaches of covenants in the lease committed by each assignee during the continuance of his own term; and such promise will be implied, although each assignee expressly covenants to indemnify his immediate assignor against all subsequent breaches.5 And the lessor on his part is liable to the assignee (when he accepts him as tenant) on all his express covenants; as for quiet enjoyment,6 or further assurance,7 or to renew the lease,1 or to repair the premises; and all other covenants running with the land.2
1 And an underlease of the whole term amounts to an assignment. Beardman v. Wilson, Law R. 4 C. P. 57 (1868). See Wollaston v. Hake-will, 3 M. & G. 297; Parmenter v. Webber, 8 Taunt. 593.
2 Shaw v. Partridge, 17 Vt. 626; Walton v. Cronly, 14 Wend. 63; Barnard v. Godscall, Cro. Jac. 309; Arthur v. Vanderplank, 7 Mod. 198; Broom v. Hore, Cro. Eliz. 633; Buckland v. Hall, 8 Ves. 95; Glover v. Wilson, 2 Barb. 264. See Wall v. Hinds, 4 Gray, 256. An assignment of a lease by a tenant at will does not terminate the tenancy unless notice be given to the landlord. Pinhorn v. Sonster, 8 Exch. 138; 20 Eng. Law & Eq. 501. And a conveyance to a third party by the lessor of premises leased at will does not, ipso facto, terminate the tenancy until the tenant has reasonable notice to leave. But see Kelly v. Waite, 12 Met. 300.
3 Ibid. But to render the assignee of a lease liable for rent to the lessor, the whole term of the lease must have been assigned. Therefore an assignment reserving the last day of the term does not render the assignee liable to the lessor. Davis v. Morris, 36 N. Y. 569 (1867).
4 An assignment, not under seal, of a lease which is under seal does not give to the assignee the right to maintain an action in his own name for subsequently accruing rent. Bridgham v. Tileston, 5 Allen, 371 (1862).
1 Auriol v. Mills, 4 T. R. 98; Wadham v. Marlowe, 8 East, 314, n.; Withy v. Mumford, 5 Cow. 137. A receipt by a lessor of rent from an under-tenant of his lessee is not necessarily an acknowledgment of the under-tenant as his own tenant. Burnham v. Hubbard, 36 Conn. 539 (1870).
2 And a covenant in a lease not to underlet without consent of the lessor is a covenant running with the land, and binds the assignees of the lease. Williams v. Earle, Law R. 3 Q. B. 739 (1868).
3 The assignee of a lease which is not assignable without the consent of the lessor, but who has such consent, is not liable for the prior breaches of a covenant on the part of the lessees to build on the premises. Town-send v. Scholey, 42 N. Y. 18 (1870). And see Tillotson v. Boyd, 4 Sandf. 521.
4 Howland v. Coffin, 12 Pick. 125; Withy v. Mumford, 5 Cow. 137; M'Crady v. Brisbane, 1 Nott & McCord, 104; Streaper v. Fisher, 1 Rawle, 155; Lewes v. Ridge, Cro. Eliz. 863. And an assignee of a lease is liable to all the covenants which run with the land, whether the assignment is absolute or by way of mortgage. Galbraith v. Cooper, 8 H. L. C. 315 (1860). If a lease contains a proviso for re-entry in case the lessee should be convicted of any offence against the game laws, an assignee of the reversion cannot avail himself of a breach of the condition, as the condition does not touch or concern the land demised, and therefore does not run with the land. Stevens v. Copp, Law R. 4 Ex. 20 (1868); Carew v. Duckworth, Ib. 313 (1869).
5 Moule v. Garrett, Law R. 5 Ex. 132 (1870).
6 Noke v. Awder, Cro. Eliz. 373; Campbell v. Lewis, 3 B. & Ald. 392.
7 Middlemore v. Goodale, Cro. Car. 503; King v. Jones, 5 Taunt. 418.
§ 1274. An assignee of the lessor's reversion also occupies the same position as the lessor, and has the same rights, duties, and liabilities to the lessee and the lessee's assignee as if he had given a new lease at the time of the assignment.3 For breaches of covenant previously made he is not liable, nor can he sue for rent accruing and due before his assignment,4 even although it be granted by the lessor to the assignee.5 But in respect to all subsequent rights and liabilities, he is the lessor, and his assignor's powers and responsibilities are gone.6
§ 1275. If a lease be successively assigned, there is an implied promise by each successive assignee to indemnify the original lessee against any breach of the covenants in the lease, which may be committed by such assignee during the continuance of his own term; so that if the original lessee is obliged to pay the lessor therefor, he may recover over against the assignee who committed the breach, and without any express covenant to that effect.1
1 Vernon v. Smith, 5 B. & Ald. 1, 11; Sacheverell v. Froggatt, 2 Saund. 370; Glover v. Wilson, 2 Barb. 264; Roe v. Hayley, 12 East, 469; Kearny v. Post, 1 Sandf. 105.
2 Ibid.; Spencer's Case, 5 Rep. 16; Lloyd v. Cozens, 2 Ashm. 131. If a lease from a tenant for life expires by his death, and the tenant continues in possession under the remainder-man, the latter is not bound by a covenant in the original lease, which was unknown to him, and was also not according to custom or usage, as, that the landlord at the expiration of the term should take at a valuation all the trees and shrubs planted by the tenant. Oakley v. Monck, Law R. 1 Ex. 159 (1866).
3 Howland v. Coffin, 12 Pick. 125; M'Crady v. Brisbane, 1 Nott & McCord, 104; St. Mary's Church v. Miles, 1 Whart. 229. The statute of 32 Henry "VIII. ch. 34, enacts this rule in England, and it is adopted generally in this country. If premises are leased, and there is an assignment of the reversion, payment of the rent to the assignor before it becomes due, but after the assignment, is not a good payment as against the assignees. De Nicholls v. Saunders, Law R. 5 C. P. 589 (1870).
4 Burden v. Thayer, 3 Met. 76; Willard v. Tillman, 2 Hill, 274; Snyder v. Riley, 1 Speers, 272; Allen v. Bryan, 5 B. & C. 512.
5 Burden v. Thayer, 3 Met. 76.
6 Beely v. Parry, 3 Lev. 154; Staines v. Morris, 1 Ves. & B. 8, 11; Pember v. Mathers, 1 Bro. Ch. 52; Armstrong v. Wheeler, 9 Cow. 88; City of Baltimore v. White, 2 Gill, 444; Peck v. Northrop, 17 Conn. 217. See ante, § 1250; Logan v. Hall, 11 Jur. 804; 4 C. B. 598.
§ 1276. An assignment of a lease is not a violation of a covenant not to underlet;2 so a covenant not to assign is not broken by an underlease.3
1 Moule v. Garrett, Law R. 5 Ex. 132 (1870). See, also, Wolver-idge v. Steward, 1 C. & M. 659; Burnett v. Lynch, 5 B. & C. 589.
2 Field v. Mills, 4 Vroom, 254 (1869); Lynde v. Hough, 27 Barh. 415, denying Greenaway v. Adams, 12 Ves. 395.
3 Crusoe v. Bugby, 2 W. Bl. 766. As to a breach of a covenant not to assign, see West v. Dobb, Law R. 4 Q. B. 634 (1869).