Jacques v. Short

By the Court, T. R. Strong, J. It was admitted at the trial, that at the date of the lease the plaintiff had title to the demised premises for her life. This title was of course subject to the estate of her husband in the premises by virtue of the marriage, for their joint lives ; and it is settled that in an action “ for rent or other cause of action, accruing during the marriage, on a lease or demise or other contract relating to the land or other real property of the wife, whether such contract were made before or during the coverture, the husband and wife may join, or he may sue alone.” (1 Chit. Pl. 5th Am. ed. 20. 1 Roper on H. & W. 213. Reeve’s Dom. Rel. 131 to 133. Decker v. Livingston, 15 John. 479.) In this case the covenant to pay rent is in terms to both, which of itself is sufficient to entitle them to join in the action, although she did not execute the lease in such a manner as to be bound by it—the execution [274] of it not having been acknowledged by her. One effect of uniting the plaintiffs in the action was, that upon the death of the husband the interest in the cause of action survived to the wife, and no interest vested in the personal representatives of the husband. (1 Chit. Pl. 21. 1 Roper on H. & W. 212.) By uniting the wife, the husband signified an assent to give her such an interest in the cause of action. (1 Roper on H. & W. 213. Reeve’s Dom. Rel. 132.) The statute (1 R. S. 747, § 21) giving to the executors or administrators of a person to whom rent shall have been due and unpaid at the time of his death, the same remedy by action for the arrears which the testator or intestate might have had if living, is not applicable ; for the reason that the husband had vested the plaintiff with his interest, in the event of his death. [Cayuga General Term, June 4, 1855. The defendant, by the conveyance to him of the premises, acquired all the interest of the original lessee therein and became in law an assignee of the lease. (Provost v. Calder, 2 Wend. 517. Armstrong v. Wheeler, 9 Cowen, 88. Acker v. Witherell, 4 Hill, 112.) As such he is liable on the covenant to pay rent. An assignee is liable on all covenants which run with the land, as covenants to repair, pay rent, &c., although not expressly named therein. (Verplanck v. Wright, 23 Wend. 506. Allen v. Culver, 3 Denio, 284. Woodfall's L. & T. 278.) The defendant cannot claim any benefit from the omission to record the lease. He is chargeable with notice of the plaintiff’s rights, as they fully appear in the- chain of his own title. The views presented cover all the points of the appellants, and in my opinion the judgment at special term should be affirmed. Judgment affirmed. Selden, Johnson and T. R. Strong, Justices.]