Bagley v. Freeman

Bkady, J. — It Avas admitted on the trial,, that in the assignment, Avhich was general, “ there Avas nothing specifically mentioning the lease ” under Avhich the plaintiff claimed rent from the defendant, as assignee. The defendant offered to prove, by the assignor, that he, the assignor, offered the lease, under the assignment, to the defendant, who refused to accept it. The plaintiff objected to the proof — the objection Avas sustained, and 198 tbe defendant excepted. If tbe justice erred in rejecting tbe proof, then tbe judgment is erroneous, and must be reversed. Tbe lease to tbe assignor, Powers, was for five years, from tbe 1st May, 1854; tbe occupancy of tbe defendant was for about three weeks, commencing about 20tb May, 1854, and tbe rent reserved by tbe lease was payable quarterly. An assignee is liable only in respect of bis possession; be bears the burthen while be enjoys tbe benefit; but if the whole term of years is not passed over to him, if a day be reserved by tbe lessee, be is not liable to tbe landlord at all. He is an under tenant. Taylor’s Landlord & Tenant, 218, and numerous cases cited. He must, therefore, be tbe assignee of tbe whole term. It is true that it is not requisite to charge him to show Ta actual entry on the land (Walton v. Cronly, 14 Wend. 63), where he accepts an interest under tbe lease, and tbe execution )f a lease by tbe assignor, and possession by the assignee are sufficient prima fade to charge him as assignee, yet, he may prove that be is not an assignee. Williams v. Woodward, 2 Wend. 487. A lessor cannot maintain an action for arrears of rent against a party occupying premises charging him as as-signee, when, in fact, be never bad an assignment of tbe lease. Quackenboss v. Clark, 12 Wend. R. 555. Did tbe proof, in this case, show an assignment of the lease ? It was admitted that tbe lease was not mentioned in tbe assignment, which left the question open to investigation, although tbe possession by tbe defendant was, as we have said, sufficient prima facie. He proposed to show that he was not tbe assignee of tbe lease, having refused to accept it under the assignment, and tbe justice erred in not admitting tbe proof, Williams v. Woodward, supra. The justice, by rejecting the testimony, assumed that tbe defendant was tbe assignee, notwithstanding tbe admission before him. There is nothing to support such an assumption, unless by construction of tbe assignment read in evidence, which is not before us. The defendant was not bound to accept tbe lease, because that would have imposed upon him a personal obligation distinct from bis trust. His representative character could not affect 199 tbe landlord’s right to bold him by privity of estate, on all the covenants running with the land. If the fact offered to be shown was proved, the defendant would not be liable to the lessor. He was a tenant at sufferance of the lessee, and clearly not liable to any one else. There are other considerations why he should not, on such proof, be regarded as an assignee, which it is unnecessary to state. It appears, on authority, that the proof offered was relevant, and should have been admitted. The justice erred, therefore, and the judgment must be reversed. Judgment reversed.