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 .
Occasionally the view appears to have been asserted that one may be held liable as assignee merely because in possession of the premises, although shown to be neither a legal or equitable assignee,69 a view which is difficult to comprehend.70 In a few cases one who entered into possession under an assignment which was invalid because not in writing has been held liable,71 on the theory, apparently, that he is, by force of the doctrine of part performance, entitled to a legal assignment and is consequently an equitable assignee, a by no means satisfactory conclusion.72
- (d) Assignee's entry unnecessary. At one time it was held in England that the assignee was not liable on the covenants until he actually entered,73 and this view has occasionally been taken in this country.74 But it has been repudiated in most jurisdictions, the legal assignee being regarded as liable though he never takes possession.75 He must, however, accept the assignment in order to be thus liable on covenants,76 or, as it may be otherwise expressed, he may, unless he has manifested his acceptance, repudiate the assignment in order to avoid liability.77 A burdensome leasehold cannot, it is evident, be cast upon a man against his will.
67. Walters v. Northern Coal Min. Co., 5 De Gex, M. & G. 629; Ramage v. Womack , 1 Q B. 116.
68. Fontaine v. Schulenburg & Boeckler Lumber Co., 109 Mo. 55, 32 Am. St. Rep. 648, 18 S. W. 1147 (Semble); Mason v. Breslin, 9 Abb. Pr. (N. S.) 427; Carter v. Hammett, 12 Barb. (N. Y.) 253, 18 Barb. 608; Berry v. McMullen, 17 Serg. & R. 84; Wickersham v. Irwin, 14 Pa. 108. That a legal assignment is necessary see Mayhew v. Hardesty, 8 Md. 479; Merchants' Ins. Co. v. Mazange, 22 Ala. 168.
69. See Frank v. New York L. E. & W. R. Co., 122 N. Y. 197, 215, 25 N. E. 332; Noble v. Thray-er, 19 App. Div. 446, 46 N. Y. Supp. 302; Hatch v. Van Dervoort, 54 N. J. Eq. 511, 34 Atl. 938; Leadbetter v. Pewtherer, 61 Ore. 168, Ann. Cas. 1914B, 464, 121 Pac. 799.
70. See Camp v. Scott, 47 Conn. 366, 377; Chicago Attachment Co. v. Davis Sewing Mach. Co., 142 111. 171, 15 L. R. A. 754, 31 N. E. 438; Haley v. Boston Belting Co., 140 Mass. 73, 2 N. E. 785, Quacken-bos v. Clarke, 12 Wend. (N. Y.) 555.
71. Baker v. J. Maier & Zobel-ein Brewery, 140 Cal. 530, 74 Pac. 22; Dewey v. Payne, 19 Neb. 540, 26 N. W. 248; Carter v. Hammett, 12 Barb. (N. Y.) 253, 18 Barb. 608; Edwards v. Spalding, 20 Mont. 54, 49 Pac. 443; Tyler Commercial College v. Stapleton, 33 Okla. 305, 42 L. R. A. (N. S.) 162, Ann. Cas. 1916E, 837, 125 Pac. 443.
72. Ante Sec. 54(b) note 82-83.
- (e) Partial transfer. As before stated, a sublessee of the tenant is not in privity of estate or of contract with the original lessor, and consequently neither the benefit nor the burden of covenants in the original lease run to him.78
The creation of a less interest out of the reversion by the owner thereof, by the making of a concurrent
73. Eaton v. Jaques, 2 Doug. 455.
74. Damainville v. Mann, 32 N. Y. 197, 88 Am. Dec. 324; McLean v. Caldwell, 107 Tenn. 138, 64 S. W. 16; Snowden v. Memphis Park Ass'n, 75 Tenn. (7 Lea) 225. La-Dow v. Arnold, 14 Wis. 458; It is so assumed apparently in Landt v. McCullough, 218 111. 607, 75 N. E. 1069.
75. Williams v. Bosanquet, 1 Brod. & B. 238; Bonettl v. Treat 91 Cal. 223, 14 L. R. A. 151, 27 Pac. 612; Benedict v. Everard, 73 Conn. 157, 46 Atl. 870; Babcock v. Scoville, 56 111. 461; Trabue v. Mc-Adams, 8 Bush (Ky.) 74; May-hew v. Hardesty, 8 Md. 479; Smith v. Brinker & Rippey, 17 Mo. 148, 57 Am. Dec. 265; St. Louis Public Schools v. Boatmen's Ins. & Trust Co., 5 Mo. App. 91; Whit-comb v. Starkey, 63 N. H. 607,
4 Atl. 793; Moline v. Portland Brewing Co., 73 Ore. 532, 144 Pac. 572; Fennell v. Guffey, 155 Pa. 38, 25 Atl. 785; University of Vermont v. Joslyn, 21 Vt. 52.
76. Macfarland v. Heim, 127 Mo. 327, 48 Am. St. Rep. 629, 29 S. W. 1030; Frye v. Hill, 14 Wash. 83, 43 Pac. 1097; Moore v. Chase, 26 Misc. 9, 55 N. Y. Supp. 621 (dictum). And this rule applies, it has been decided, in favor of the legatee of a leasehold. Whit comb v. Starkey, 63 N. H. 607, 4 Atl. 793.
77. See Hannen v. Ewalt, 18 Pa. 9. This mode of expression would be more correct in any jurisdictions in which a conveyance is regarded as valid, without acceptance, until repudiated by the grantee. See post, Sec. 463.
78. Ante Sec. 55(b).
[ Sec. 56 lease,79 stands, however, on an entirely different footing from the making of a sublease by the tenant, it involving to that extent a transfer of the reversion and in such case the covenants run to the second lessee,80 and they likewise run when either the lessor or lessee, instead of transferring his interest in the entire premises, transfers it in a part thereof only,81 or transfers merely an undivided interest.82
- (f) Covenants as to things not in esse. Spencer's Case, besides asserting the requirement that a covenant, in order to run with the land, must touch or concern the land, also asserted the requirement that, even though the covenant does touch or concern the land, if it concerns likewise a thing which is not in esse at the time of the demise, but which is to be built or created thereafter, the covenant will not bind assigns unless they are expressly mentioned. So, in that case, it was decided that a covenant by the lessee to build a wall on the premises did not bind his assigns because he covenanted only for himself, his executors and administrators, without including assigns. This distinction between covenants as to things in esse and those as to things not in esse, with its requirement of the mention of assigns in the latter case, while it has been occasionally repudiated83 or ignored,84 has been generally hold.90 Consequently, such liability endures only so long as this privity continues, and it comes to an end when the privity is ended by the assignment of the leasehold interest of the assignee to another, a "reassignment" by him, as it is frequently expressed.91 The effect thus given to a reassignment by the assignee is not changed by the fact that it is made for the purpose of freeing him from liability, or that it is made with knowledge on his part that his assignee is entirely insolvent, a mere beggar in fact, or is otherwise unable to perform the covenants of the lease.92 But if the reassignment by the assignee is merely colorable, as being made to one who is to hold in behalf of the assignor and subject to his control, equity will relieve in favor of the landlord.93