Van Rensselaer v. Bradley

By the Court, Jewett, J. The first objection to the second count is, that it does not allege that the defendant is the assignee of the whole of the premises demised to the lessee, but only of a part; It is insisted that the defendant, being assignee of but a part, is not liable to the plaintiff in covenant for the non-payment of rent in respect to such part—that such covenant is not divis-. ible, and cannot, therefore, be apportioned. The rent reserved, and to which the covenant of the lessee applies, is strictly a rent service at common law, which was when the tenant held the land by fealty or other corporal service and a certain rent,(a) to [141] which was incident the right of distress. (3 Kent. Com. 5th ed. 460 ; 2 Black. Com. 41.) .Such rent was, at the common law, apportioned either on severance of the land from which it issued, nr of the reversion to which it was incident. Although it was a doctrine of the common law, that an entire contract could not be apportioned, the principle was limited to personal contract? and covenants, and did not extend to such as run with the land (3 Kent. Com. 469 ; Hodgkins v. Robson, 1 Vent. 276; Ingersol v. Sergeant, 1 Whart. Rep. 337; Stevenson v. Lombard, 2 East. Rep. 575; Merceron v. Dowson, 5 Barn & Cress. 479.; Wollaston v. Hakewill, 3 Mann. & Gr. 297; Astor v. Miller, 2 Paige's Rep. 78; Pollard v. Shaaffer, 1 Dallas, 210.) The covenant to pay rent, contained in the lease in question, runs with the land. The lessee covenanted for himself, his heirs, executors, administrators and assigns. (Hurst v. Rodney, 1 Wash. C. C. R. 375 , Comyn's Dig. tit. Covenant, (C. 3;) 5 Co. 24, b; 2 Bacon, Abr. ed. 1843, tit. Covenant, (E. 3,) note.) And as the covenant runs with the land and affects the whole, the assignee of part of the land is liable to the landlord for the rent in an action of covenant. (See the cases last cited, and Astor v. Miller, sup.; Weidner v. Foster, 2 Penn. Rep. 23; 2 Sound. Rep. 182, note 1.) But it is objected that a part of the rent or service reserved, to wit, “ one day’s serviqe with carriage and horses,” is an entire service, and is in its nature indivisible, and that therefore the assignee of a part of the premises is not liable. The rule found in the books, which I take to be sound, is this—“ If a man which -hath a rent service, purchase parcel of the .land out of which the rent is issuing, this shall not extinguish all, but for that parcel. For a rent service in such case may be apportioned ac [142] cording to the value of the land.” (1 Coke Litt. Phil. ed. 1836. p. 539.) “ But if one holdeth his land of his lord by the service to render to his lord yearly at such a feast, a horse, a golden spear, or a clove, gilliflower or the like, and the lord purchase parcel of the land, such service is taken away, because such service cannot be severed or apportioned.” (Id. p. 545.) The whole tenancy being equally chargeable with them, the lord by his own act shall not discharge part, and throw the whole bur-then upon the residue for his own private benefit and advantage. (Gilbert on Rents, 165.) But if the service be entire—to render yearly at such a feast, a horse, or the like, and the lessee assign a part of the premises to a stranger—in this case such service being indivisible shall multiply. (1 Co. Litt. ed. sup. 546: Gilbert on Rents, 170; Hodgkins v. Robson, 1 Vent. 276; Ingersoll v. Sergeant, 1 Whart. Rep. 337; 7 Comyn's Dig. 493, tit. Suspension, G.) It is also objected that the second count is defective for the want of a description of the premises demised. The count is in exact accordance with the form advised by Sergeant Williams, in 1 Saund. Rep. p. 233, note 2. It is there laid down, that to avoid unnecessary prolixity in an action of covenant for non-payment of rent, it is sufficient to allege in the declaration, that the plaintiff, on such a day and year at such a place, by a certain indenture made between him of the one part and the defendant of the other part, (which the plaintiff brings here into court,) demised to the defendant certain premises particularly mentioned and described in the said indenture, instead of setting out the parcels as is too frequently done. The same rule was laid down by Lord Mansfield and the whole court of king’s bench in Dundass v. Lord Weymouth, (Cowp. 665.) It is true, the cases spoken of were actions against the lessee on the personal covenant; but I do not see that there is any more necessity for setting out the description of the premises, where the suit is against the assignee, than in the case to which the rule was applied. (See 2 Chitty's Pl. 194, 195, Day ed. 1812.) Another objection to this count is. that there is not a sufficient description of that part of the demised premises alleged to have [143] been assigned to the defendant. That description is as follows: It is averred to be “ seventy acres of the southerly side of the said demised premises of equal value by the acre with the rest.” Counsel have not referred us to any precedent or authority to sustain the allegation. Such description would be sufficient in a conveyance to pass the title to the seventy acres, and I am unable to discover any reason why it should not be deemed sufficient in this declaration. Having a description of the whole premises, in the lease, the pleading, in my judgment, sufficiently specifies that part which is alleged to have been assigned to the defendant. It is said that this count does not set forth how or in what manner forty-five bushels of wheat, eight fat fowls, and two days’ service with carriage and horses, comprises the fair and just proportion of rent for that part of the premises assigned to the defendant, and that said allegation is not justified by any thing in the count contained, and that it is argumentative. I think the allegation is sufficient to put in issue the proportion of the whole rent for the whole demised premises, which the plaintiff would be entitled to recover of the defendant as assignee of the seventy acres. The rent must be apportioned, when the landlord seeks to recover of an assignee for a part of the premises according to the value of the land, and it is the business of the jury upon evidence produced to apportion the rent to the value of the land. (Gilbert on Rents, 163; Farley v. Craig, & Halstead, 262; 3 Kent's Com. 469; 1 Ventris, 276.) The allegation in substance is, that so much as is claimed to be due for the seventy acres for the time specified, is the just proportion of the whole rent chargeable upon the whole demised premises for the time for which it is claimed; and this is a question of fact to be ascertained by the jury upon such evidence as the parties may produce. I am not able to discover the necessity of a more specific allegation, or indeed in what manner one more specific in this respect could well be framed. It is contended in the last place that the second count is defective in not stating that the lessee had not paid the rent. The case of Dubois’ executors v. Van Orden, (6 John. R. 105,) is [144] decisive that such allegation is unnecessary. When the declaration avers, (as this count does) that the rent Accrued subsequent to the assignment to the defendant, and was due and owing to the plaintiff and .still remains in arrear and unpaid .from the defendant, it states .a breach insufficient terms. That the lessee had not paid it, is implied in the averment, that the defendant owed it. It is urged that the third count is defective in claiming that the rent said to be in arrear, was the rent for said demised premises for four years and that it is not averred what rent, or that any'rent of the part of the premises assigned to the defendant was in arrear. The count certainly does claim that the defendant, although an assignee of but part of the demised premises, is liable for all the arrears of rent for the whole, during the four years. It should have claimed only such proportion as had accrued upon that part of the premises assigned to the defendant. His liability is limited to that proportion. I think the demurrer in this particular well taken. It is argued that the fourth count is defective in the statement of the defendant’s title as assignee. It avers that the defendant is the assignee of the whole or some part of the demised premises, without specifying whether of the whole or a part ¡ or if of a part, what part. I think this count is bad, "on the ground that the averment -as to the share or portion of the premises assigned to the defendant is in the alternative. (Stephen’s Pl. 387, note 2; Cook v. Cox, 3 Maule & Selw. 110.). It is supposed by the plaintiff’s counsel that the case of Wollaston v. Hakewill, (3 Man. & Gr. 297,) is an authority to sustain .this mode .of pleading. That was an action of covenant upon an indenture of lease for non-payment of .rent, and non-reparation. The declaration .alleged, that all the estate of the lessee in .a great part of the demised premises, came to and vested in the defendant by assignment, whereupon and whereby the defendant became possessed. The defendant-pleaded that the said part of the premises did not.come to or vest in her by assignment. No question was -raised there arto the sufficiency or propriety of the allegation. The question [145] was, whether the evidence supported the allegation. But if there had been a question raised on the pleading, it is quite probable it might have been sustained, under the general rule, that it is not necessary to allege title more particularly than is sufficient to show a liability in the party charged, or to defeat his present claim. Except as far as these objects may require, a party is not bound to show the precise estate which his adversary holds, even in a case where, if the same person was pleading his own title, such precise allegation would be necessary. The reason of this difference is, that a party must be presumed to be ignorant of the particulars of his adversary’s title, though he is bound to know his own. (Rider v. Smith, 3 T. R. 766; 1 Chitty’s Pl. 238, 239.) But this rule will not sustain a pleading in the alternative. The plaintiff is entitled to judgment upon the demurrer to the second count, and the defendant to judgment on the third and fourth counts. Judgment accordingly. Footnotes [(a)] See Littleton on Tenures, lib. 2, ch. 12, §§ 215,216, 217, and Co. Lit. 142, b, 143, a; 2 Bl. Com. 42 ; Bac. Abr. Rent, A; The People v. Haskins, (7 Wend. 463;) Cornell v. Lamb, (2 Cowen, 652.) But whether the rent in question would' at common law he a rent service or a rent charge, the provisions of 1 R. S. 748, [141] § 25, copied from 1 R. L. 363, seem intended to assimilate a rent reserved upon a conveyance in fee to one accompanied by a reversion, so far as concerns an action by the assignee of the lessor. The English statute only extended to assignees of the rent and reversion where the lease was for life or years, the right to take advantage of the covenants in the leases. (32 H. 8, ch. 34,2 Ruff head’s Statutes at Large, 294.) The provision referred to placed leases in fee upon-the same footing.