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 the 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 a 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. Tayl. Landl. & Ten. § 427, and cases cited in notes.
It is 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 quarter, unless he had before that time ceased to hold the relation of tenant, or assignee of the lease. The liability of an assignee, upon covenants running with the land, extends only to such as are required to be performed while he holds that relation. Patten v. Deshon, 1 Gray, 325. It is stated in the report that "on or about May 18, 1870, 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 afterwards 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 for 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, otherwise than by his suit for the rent.
It does not appear that the plaintiff had already received his rent from Jackson and Muzzy; or that the defendant had any equitable defence as against them. The fact that Jackson and Muzzy remained liable for the rent upon their express covenants in the lease, notwithstanding their assignment, is sufficient explanation of the statement that the suit was brought with the plaintiff's consent, and at the request of Jackson and Muzzy.
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, $1,450, and interest.
Judgment for the plaintiff accordingly.
Morton, J., in
129 Massachusetts, 481. - 1876.
The only ground upon which the plaintiff can maintain an action, either at law or in equity, is that at the time of the levy of the execution in favor of the Lancaster National Bank, Samuel T. Ames held terms for years or leasehold estates in the premises in controversy, which were duly seized and sold under said execution. Assuming this to be so, the plaintiff stands in the position of an assignee in law of the terms for years, with substantially the same rights as if they had been voluntarily assigned to him by Ames. His remedy at law to enforce his rights as such assignee is plain, adequate and complete. He can compel the under-lessees to pay the rent agreed to him, and can enforce the performance of the covenants of the lessor in her leases. Howland v. Coffin, 9 Pick. 52; Shelton v. Codman, 3 Cush. 318; Patten v. Deshon, 1 Gray, 325; Hunt v. Thompson, 2 Allen, 341.
b. Restraints on alienation of a term.
JACKSON ex dem.
17 Johnson (N. Y.), 66. - 1819.
[Reported herein at p. 731.]
4. Alienation of the Rent or of the "Reversion."
4 New York, 126. - 1850.
Assumpsit for use and occupation of a dwelling-house. One Lawrence had leased the premises to defendant Smith by a writing not under seal for the term of two years. During the term Lawrence assigned the lease to plain tiff Moffatt, but did not transfer to him the reversion. One Shepherd was in actual possession of the premises. Judgment for plaintiff. Defendant appeals.