Hinsdale v. Humphrey

Hinman, J. The plaintiff, by deed poll, on the 10th day of October, 1827, leased certain premises to Ichabod Loomis, his heirs and assigns, for so long a time as a certain store standing thereon should continue, after the same had been repaired; and in the lease, is this clause : “ After said five years expires, the said Ichabod is to pay, or his heirs or assigns, such rent as shall be considered a reasonable ground rent for the land on which the building stands, yearly ; and if the lessor and lessee shall be unable to agree upon ground rent, then the amount thereof, from time to time, shall be left to two indifferent men to determine.” On the 1st of November, 1831, Loomis assigned his interest in the unexpired term, to Chester Humphrey, who, on the 3rd of July, 1833, made a like assignment thereof to the defendant; who thus took, and still retains, possession of the premises. The rent being in arrear, the plaintiff has brought an action of covenant, to recover it; claiming, that Loomis, the original lessee, though he did not [435] sign or seal the deed, yet, as he accepted it, and took posses* sionof the premises under it, he thereby, so far,became a party to it; that he is liable in covenant, for the non-performance of such conditions and stipulations, as by the deed, it was made the duty of the lessee to perform, and as effectually,as if he had signed, sealed and delivered the instrument; and that the defendant, being the assignee of the premises, is also liable, in this action, for the non-performance of the covenants, during the time that he has had the possession of the premises. The declaration being demurred to, the only question arising upon the demurrer, is, whether covenant will lie against lessee, or assignee of lessee, for rent on a lease sealed only by the lessor: in other words, whether mutual covenants can arise upon a deed poll 1 The general rule, that covenant will not lie, except against him, who, by himself, or his duly authorized agent, has sealed and delivered a deed, has not been questioned — nor could it be. The very definition of a covenant, a contract or agreement under seal, or by deed, implies clearly, that to be binding, as a covenant, the agreement must be sealed by the obligor, or his agent; otherwise, it would not be his deed. But, it is said, there are certain exceptions to the general rule ; and that this case falls within one of them. And it is true, that several of the elementary writers do lay down the proposition, that the covenantee’s acceptance of the deed, is such an assent to the agreement, as will render it binding on him. 4 Cruise’s Dig. c. 25. p. 393. Com. Dig. tit. Covenant. A 1. 1 Sw. Dig. 571. If nothing more is meant by this, than the words, in their literal interpretation, imply, the proposition is not, perhaps, objectionable : but supposing the writers intend by it, that the covenantee’s acceptance of the deed, is such an assent to the agreement, as will render it binding on him as a covenant, it will be found to be unsupported by the authority of any adjudged case, and is clearly erroneous in principle. The cases usually referred to, in support of this doctrine, are Green v. Horne, 1 Salk. 197. and the case stated in Co. Lilt. 231. a. The case in Salk. has no application to this case. The only principle decided there, was, that a person not named in an indenture, cannot have an action on it. And the case stated in Co. Lilt, was not an action of covenant, but an action of debt. Platt on [436] Cov. 3 Law Library, p. 6 & 9. Indeed, all the authorities on this subject, are very thoroughly examined, by Mr. Platt; and he says, that no instance can be found, of an action of covenant having been sustained by the courts, against one claiming under a deed poll. . The cases cited at the bar, which arose upon patents from the crown, may form an exception to the general rule, that mutual covenants cannot arise upon a deed poll. They evidently do form such an exception, unless they stand upon the principle, that the king can covenant for both parties; upon which ground, they may be reconciled with the other cases, and would thus be correct in principle. However this may be, it is entirely unnecessary, for the purposes of this case, to enquire. The question, whether covenant can be maintained against lessee for rent, on a lease, sealed only by the lessor, has lately arisen in the supreme court of Ohio, in the case of Trustees of a section of land in Hocking County v. Spencer, 7 Ohio Rep. 2d part, p. 149. And it was there held, that it could not. And Grimké, J., who delivered the opinion of the court, says, “ such a doctrine is unsustained, either on principle or authority, in England, and has never been asserted in any of the courts of America.” ' It is enough, for the purposes of this case, that covenant will not lie ; without attempting to furnish the plaintiff with another remedy. But, as the cases which go to show that another action may be brought, also show, that covenant cannot lie ; as covenant and assumpsit, or covenant and case, are not concurrent remedies ; it is not, perhaps, improper, to refer to the case of Goodwin v. Gilbert, 9 Mass. R. 510. in which it was held, that where certain duties were reserved, to be performed by the grantee of a deed poll, assumpsit may be sustained for the non-performance of them. And in the case of Burnett & al. v. Lynch, 5 B. & Cres. 589. (12 E. C. L. 327.) it was held, that case lay against the assignee by deed poll, who had taken possession under an assignment from the lessee, for breaches of covenant, committed during the time that the assignee was in possession ; and Ch. J. Abbott, in giving his opinion, says, he thinks assumpsit would also he. [437] We, therefore, advise the superior court, that the plaintiff’s declaration is insufficient. In this opinion the other Judges concurred. Declaration insufficient.