Shaw v. Partridge

The opinion of the court was delivered by HebaRd, J. This action is based upon a lease from William L. Harrington to the defendant, dated April 1, 1820, which lease contains a covenant on the part of the defendant to pay to the said Harrington, his heirs, or assigns, a yearly rent. On the first day of November, 1828, the said Harrington assigned this indenture, and all his interest in the premises, to Jabez Penniman as administrator of the estate of George Y. Harrington. This interest was, by the probate court, on the first day of January, 1839,. set off to the widow of the said George Y. Harrington, as part of her dower in his estate. Afterwards the said Moody intermarried with the widow, and, after suit brought, but before trial, he deceased. To the action the defendant has pleaded several pleas in bar, some of which were traversed, and the others demurred to. Upon these pleas several questions are presented. And the first is, whether this suit can progress, after the decease of Moody, in the name of his administrator. By the marriage Moody became possessed of whatever interest his wife had in the premises; and the rent, that became due in his lifetime, was his, and subject to his control. This rent having accrued during cov-erture, it was not necessary to join his wife in the suit, and it does not survive to the wife. The result would be, that, if the husband, in his lifetime, had not commenced the suit, after his decease this rent, which accrued in his lifetime, and during coverture, would be assets in the hands of the administrator, and must be collected by him. It is farther objected to the plaintiff’s right of recovery, that there is no such privity of contract between the parties, as gave Moody any right to recover, — on the ground that the defendant, before this rent had accrued, had transferred and assigned all his interest in the lease and the premises to another person. This objection would [632] as well lie, if the action had been brought by Harrington, the lessor, as when brought by an assignee of the lessor; and this must depend upon the covenant. The plea, upon which this question arises, and to which there is a demurrer, alleges, that, before any of this rent accrued, the defendant set over and assigned all his interest in the premises to one Blood, who entered and took possession of the same ; and that af-terwards the said Moody received of said Blood one year’s rent, and then and there accepted said Blood as the only true and proper tenant of the premises. All that may be true, and not discharge the defendant from his covenant. If the action had been debt, instead of covenant broken, it would be different. When the landlord leases the premises, he takes into consideration the fitness and responsibility of the lessee. The lessee assigns the premises to whom he pleases; the landlord has nothing to do in selecting the under-tenant. But it is a common principle of law, that, when a man enters into an express covenant to pay rent, that covenant continues binding upon him, notwithstanding he have assigned the lease. The same rule of law, that would thus relieve him from his liability on his covenant, would absolve him from any liability upon his promise to pay a stipulated sum for the purchase of property, if he should see fit to divest himself of that property, before the promise was enforced. This point is fully established in the case of Auriol v. Mills, 4 T. R. 94. That is a strong case and establishes more, than is necessary in the present case. There the lessee had been dispossessed of the demised premises, before the rent became due, by the operation of law and the acts of other persons. In the case at bar the defendant, by his own deed, assigned the premises to Blood voluntarily. The main question remains to be considered; and that is, whether Adelia A. Harrington, the widow of George Y. Harrington, was legally the assignee of the lessor, so that she, or any other person in her right, could maintain this action. The objection to this is, that the decree of the probate court was inoperative and gave her no interest in the premises. It is not pretended, but what here was such an interest in land, as would make it the subject of such a decree, if this interest was legally in the estate of the said George Y. Harrington. This was a durable lease, and William L. Harrington had an [633] assignable interest in the estate, and, by his deed in the usual form, assigned all his interest in the premises to Jabez Penniman, as administrator of the estate of George Y. Harrington, to hold in, his capacity of administrator. The inquiry may naturally arise here, — in what other way could this interest have been assigned, so as to have vested it in the estate of George Y. Harrington 1 If it had been assigned to the estate, in terms, it would have been void. There being no other depositary appointed by law, the administrator was the proper person for this purpose, to receive the title for the time being. He is, pro hac vice, the representative of the deceased, and,,with reference to the property, stands in his place. If, then, this interest was held by Penniman in his capacity of administrator, it was held by him in the same manner and for the same purpose, that the other property of the estate was held, and subject to the same orders of the probate court. When it was thus assigned to the administrator, it became, by operation of law, the property of the estate, or, more properly speaking, a part of the estate, of George Y. Harrington; and, by virtue of the decree of the probate court, it became the property of Adelia Harrington. This was a covenant that run with the land ; and, as the interest in the land passed, it carried the covenant along with it; so that there was the same privity of contract and privity of estate between the parties, that there would have been, if the assignment had been made to George Y. Harrington in his lifetime, and had then passed to his ■ widow by the decree of the probate court, as in the present instance. This also disposes of the question of variance; for, with this view of the case, the plaintiff declared, at least, according to the legal effect of the assignment. Judgment affirmed.