Gardiner, J. - The original lease between Mrs. Dunscombe and the plaintiffs contained a covenant of re-entry on the nonpayment of rent by the lessees for ten days after it fell due. The jury have found that the ground rent due to Mrs. Dunscombe has been paid by the defendants, the lessees tenants; and the only question of any importance, is whether they were justified in making such payment and entitled to have the amount applied in discharge of their rent due the plaintiffs.

It has been frequently decided upon the most obvious principles of justice that if an under-tenant is compelled to pay rent to the head landlord he may deduct it from the rent due to his immediate lessor; or if the sum paid exceeds that due the lessee the tenant may in an action of assumpsit for money paid to the use of the lessor, recover the excess. 1 Smith's Leading Cases, 4 Am. ed. 202, 3 and 4 marg., pages 73, 4, 5, and cases there cited; 4 Term, 511. This privilege upon the part of the under-tenant exists, if there be in the head landlord a legal right by the exercise of which the person who pays may be damnified unless he satisfies it. 1 Leading Cases, 203. It is not necessary that the head landlord should distrain or even demand the money or commence or threaten a suit. The right to enforce his claim in this way will make the payment by the undertenant compulsory within the principle of the decisions.

In this case the original lessor had, as we have seen, the right of re-entry. The under-tenant was authorized to protect his possession against the exercise of this right by paying the rent to the head landlord. Such a payment is not voluntary, and there is no question but that it was made by the defendants in good faith with an honest purpose to shield themselves from damage. I think the judgment of the common pleas should be affirmed.

Judgment affirmed.

Sanders V. Partridge

108 Massachusetts, 556. - 1871.

Action on contract to recover rent. The original lessees, Jackson and Muzzey, sublet the premises and afterwards transferred the lease itself to Partridge by a writing endorsed thereon, but not under seal. Partridge received the rent paid by the under-tenants. Other facts appear in the opinion. The case was reserved for the opinion of this court.

Wells, J. - 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 the 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 the rent binds the lessee, and " runs with the land " so as to bind the assignee also. Patten v. Deshon, 1 Gray, 325; Blake v. Sanderson, 1 Gray, 332; Croade v. Ingraham, 13 Pick. 33; Waldo v. Hall, 14 Mass. 486; Smith, Landl. & Ten. 287; 1 Washb. Real Prop. 326; 4 Blytherwood's Conveyancing, 388.

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 as an assignment of the instrument by which it was created, this objection must be held to be decisive.

But we do not so understand the law. A lease, by whatever form or 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. c. 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. No 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 thereof. The defendant cannot set it aside for the want of a seal.

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 endorsed 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, lb. 332.