Bemis v. Wilder

Colt, J. To defeat this action to recover possession of the tenement, which the defendant, it is found, forcibly holds against the plaintiffs, a covenant not to lease nor underlet, nor permit any other person to occupy, contained in the lease between Brown, the original lessor, and the defendant, is relied upon. The plaintiffs claim as assignees of the defendant’s interest in the lease, by an unrecorded assignment from the defendant’s assignee in insolvency. The court declined to rule that the lease was not transferred to the plaintiffs without the consent in writing required in its terms, and that the assignment from the assignee in insolvency was insufficient to give a right to the plaintiffs, as against the defendant, for the reason that it had not been recorded. There is no error in these refusals. It is not for the defendant to set up the breach of his own covenant not to lease or underlet, to defeat the plaintiffs’ right. That stipulation was inserted for the benefit of the lessor and those claiming under him, who alone can take advantage of any breach. The stipulation here is in the form of a covenant, and not a condition with a right of entry reserved. But if the agreement had been of the latter description, the lease would have been valid until the lessor had exercised his option to terminate it, which he has never done. Shattuck v. Lovejoy, 8 Gray, 204. Taylor Landl. & Ten. § 412. But further, it is well settled that an assignment by operation of law passes the estate discharged of the covenant to the assignee ■ and this would seem to be so where the transfer arises [448] from voluntary proceedings in insolvency, as distinguished from proceedings in invitum, and where there is no indication that the proceedings are colorable, merely for the purpose of effecting the transfer in fraud of the lessor. Smith v. Putnam, 3 Pick. 221. Taylor Landl, & Ten. § 408. No record of the assignment to the plaintiffs was necessary as against the defendant. His right to possession ended with his insolvency, and he sets up no after acquired title valid as against an unrecorded assignment. Exceptions overruled.