This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
126 Mass. 402; Wineman v. Phillips, 93 Mich. 223, 53 N. W. 168; House v. Burr, 24 Barb. (N. Y.) 525.
96a. Barnard v. Godscall, Cro. Jac. 309; Norton v. Acklane, Cro. Car. 579; Barnes v. Northern Trust Co., 169 111. 112, 48 N. E. 31; Grommes v. St. Paul Trust Co., 147 111. 634, 37 Am. St. Rep. 248, 35 N. E. 820; Harris v. Heackman, 62 Iowa, 411, 17 N. W. 592; Wall v. Hinds, 70 Mass. (4 Gray) 256, 64 Am. Dec. 64; Hartz v. Eddy, 140 Mich. 479, 103 N. W. 852; Charless v. Froebel. 47 Mo. App. 45; Edwards v. Spalding, 20 Mont. 54, 49 Pac. 443; Bouscaren v. Brown, 40 Neb. 722, 59 N. W. 385; Creveling v. De Hart, 54 N. J. L. 338, 23 Atl. 611; Taylor v. DeBus, 31 Ohio St. 468; Frank v. Maguire, 42 Pa. 77; Shand v. McCloskey, 27 Pa. Super. Ct. 260; Bailey v. Wells. 8 Wis. 141, 76 Am. Dec. 233.
97. Rector v. Hartford Deposit Co., 190 111. 380, 60 N. E. 528.
While both the lessee and the lessee's assignee are ordinarily liable on the former's covenants, the former by privity of contract, and the latter by privity of estate, the liability of the assignee is, as between him and the lessee, regarded as primary, and the lessee is, as between them, a surety only for the payment of the rent and the performance of the other covenants. Consequently the lessee, the surety, on paying the rent or discharging any other covenant, may recover from the assignee the amount of his expenditure in this regard,5 and this he may do even after a reassignment by the assignee to another,6 provided the breach of covenant occurred before such reassignment, that is, while the assignee had title to the leasehold.7 The liability thus to indemnify the lessee extends even to a remote assignee, that is, an assignee of an assignee, each successive assignee in effect undertaking to indemnify the original lessee against breaches of covenant occurring during such assignee's tenancy.8
98. See post Sec. 407 notes 59-59d.
99. Jackson v. Brownson, 7 Johns. (N. Y.) 227.
1. Brett v. Cumberland, Cro. Jac. 521; Barnard v. Godscall, Cro. Jac. 309.
2. McKeon v. Wendelken, 25 Misc. 711, 55 N. Y. Supp. G26; Mason v. Smith, 131 Mass. 510.
3. Washington Natural Gas Co. v. Johnson, 123 Pa. 576, 16 Atl. 799, 10 Am. St. Rep. 553.
4. Batchelour v. Gage, Cro. Car. 188.
5. Humble v. Langston, 7 Mees. & W. 530; Wolveridge, v. Steward, 1 Cromp. & M. 659; Trabue v. Mc-Adams, 8 Bush. (Ky.) 74; Far-rington v. Kimball, 126 Mass. 313,
30 Am. Rep. 680; Collins v. Pratt, 181 Mass. 345, 63 N. E. 946; Crowley v. Gormley, 59 (N. Y.) App. Div. 256, 69 N. Y. Supp. 576; McHenry v. Carson, 41 Ohio St. 212; Bender v. George, 92 Pa. 36. See Brinkley v. Hambleton, 67 Md. 169, 8 Atl. 904.
6. Burnett v. Lynch, 5 Barn. & C. 589; Moule v. Garrett, L. R. 5 Exch. 132, L. R. 7 Exch. 101.
7. Wolveridge v. Steward, 1 Cromp. & M. 644; Crouch v. Tregonning, L. R. 7 Exch. 88; Mason v. Smith, 131 Mass. 510; Brinkley v. Hambleton, 67 Md. 169, 8 Atl. 904; Walker v. Phys-ick, 5 Pa. 193.
Occasional statements are to be found to the effect that while a lessee remains liable after an assignment by him, upon his express covenants, he does not so remain liable on his "implied" covenants.9 The only implied covenant which has been specifically named in this connection is that for rent, "implied" from the words "yielding and paying," and such a covenant has accordingly been occasionally held not to bind the lessee after assignment. It would rather seem, however, that if a covenant is in any case to be regarded as created by such language, it is properly an express covenant, and the cases referred to may perhaps, in their employment of the expression "implied covenant," be regarded as referring merely to the lessee's liability based on privity of estate.10
In case of the death of the lessee, the liability on his covenant may be enforced against his estate, even though he assigned the leasehold, and the breach did not occur during his life,11 that is, as he himself remains liable after assignment, his estate is so liable on his death.
- (e) Assignee's rights and liabilities. As regards rights and liabilities arising from privity of estate, that is, based on the relation of tenancy, the assignee of the leasehold interest is substituted as tenant for his assignor. Thus he is liable in an action
8. Moule v. Garrett, L. R. 5 Exch. 132, L. R. 7 Exch. 101; Far-rington v. Kimball, 126 Mass. 313, 30 Am. Rep. 680.
9. Ghegan v. Young, 23 Pa. 18; Charless v. Froebel, 47 Mo. App. 45; Consumers' Ice Co. v. Bixler, 84 Md. 437, 35 Atl. 1086; Fanning v. Stimson, 13 Iowa, 42; Harmony Lodge v. White, 30 Ohio St.
569, 27 Am. Rep. 492; Kimpton v. Walker, 9 Vt. 191.
10. The cases bearing on the question are discussed at length in 1 Tiffany, Landlord & Ten. Sec. 171b.
11. Brett v. Cumberland, Cro. Jac. 521; Scott v. Lunt, 32 U. S. (7 Pet.) 596, 8 L. Ed. 797; Broad-well v. Banks, 134 Fed. 470;
[Sec. 55 of debt for the rent reserved.12 And he may no doubt be subjected to liability for waste.13
The extent to which the assignee succeeds to the rights and liabilities of the lessee based on privity of contract, that is, on the covenants of the lease, is discussed below under the head of the running of covenants with the land.14