Hintze v. Thomas

Eccleston, J., delivered the opinion of this court. This is an action of covenant for rent alleged to be due under a lease from Margaret Moore to Peter R. Blumb, for ninety-nine years, bearing date the 7th of May 1836, which lease was assigned to H. Peters, on the 18th of February 1837, by Mrs. Moore. When she executed this lease her only title to the premises was as lessee under a lease for ninety-nine years, commencing on the 2nd of November, 1792. The rent in controversy fell due after the assignment by Mrs. Moore to Peters. This claim has been resisted upon the ground that as the lease or conveyance from Mrs. Moore to Blumb, professed to convey a larger estate in the premises than she was actually entitled to, no reversion was left in her, and therefore none was transferred by the assignment which she made to Peters, who, for want of a reversion in him, could not maintain this action, if living, and of course his representative cannot. [350] It is unnecessary (o decide whether the appellant’s views on this point are correct or not, because another objection to the present right of action must settle the case adversely to the plaintiff. The claim is against Hintze, as assignee of Blumb, for vent falling due after the assignment to Hintze, and before he assigned to McElderry. It is contended, that as the suit was instituted after the assignment by Hintze, it cannot be maintained. The remedy, if any, is not at law, but in equity. This subject has been examined with much care and ability in Platt on Cov., from page 495 to 503, in 4 Law Lib., and his argument is designed to establish the position assumed in the present defence. He commences the argument by stating that the privity of estate, which exists between (he lessor and the assignee, during the occupancy of the latter, is the principle which gives to the former the remedy by covenant; and that by getting rid of the estate, the assignee determines the privity as far as regards himself, and transfers it to the new assignee. From this he draws the inference, that if the privity, on which alone the liability is based, is destroyed, the dependent liability of the assignee must cease. The defeasance of the principal, he thinks, will operate as a defeasance of the accessary. This writer also thinks, that in addition to the argument resting upon the principle on which is founded the right to maintain covenant against the assignee, the authorities are consistent with his view of the subject. He then makes reference to the rule that equity will seldom grant relief where means of redress can be had at law; from which it is assumed that if suits in equity, insiituted for the purpose of compelling an assignee, after he has made an assignment, to pay rent accruing during his possession, have frequently been sustained, it may be fairly inferred that the court of chancery sanctioned such proceedings because there was no remedy at law. After which, cases are examined, showing that relief had been granted in equity, and in some instances (he right to sue at law had been denied. And from the authorities referred to, Mr. Platt insists, it is evident that some of the greatest English judges, for a period approaching to a century and a half, were directly [351] hostile to the right of action, in a court of law, against an assignee, under such circumstances. In Harley vs. King, 2 Crompt., Mees. & Ros. 18, it was decided, that an assignment over, before suit brought, would not defeat or prevent a recovery in an action of covenant, against the intermediate assignee, for the breach of a covenant to repair occurring between the time of the assignment to him and the date of the one from him. But, in the later case of Fagg vs. Dobie, 3 You. & Col., 96, the doctrine contended for in Platt on Cov., was sustained. There the proceeding was in equity in the Exchequer. No lease had been actually made but an agreement for a lease for sixty-one years, and possession taken under it. The tenant assigned to B., who assigned to C., and the suit was against B. At page 103, Baron Alderson says: “An assignee of a term is liable to the covenants only by reason of his privity of estate.” And he maintains that the law which imposes this liability will only continue it so long as the privity of estate continues; so that any real assignment puts an end to it. In reference to a question, whether the assignment was fraudulent, in consequence of being made to a man in poverty, the court held, that if the assignment was real, the party not retaining in himself the beneficial possession, it was not a fraudulent act. And that the motive which influenced one in parting with, or the motive of the other for receiving it, did not render it. fraudulent, if the act was designed really to operate as it appeared to do. It is then said by Baron Alderson: “ The decisions, both at law and in equity, concur in this point. But though this be so, yet equity will give relief as to antecedent rent due, or antecedent breaches of covenant committed at the time the party was liable for them, although by his subsequent assignment the remedy at law is gone.” Taking this case in connection with Mr. Platt's argument, and the cases referred to by him, we think, notwithstanding the decision in Harley vs. King, that the present action cannot be maintained. There is an agreement that errors in pleading shall be waived, and the facts are set forth in a statement.. The plaintiff’s counsel relied upon the doctrine of estoppel, [352] but we understood him as urging it against the first ground of defence. If, however, he meant to apply it to the second also, we do not think it available against such a defence in a case like the present. Paul vs. Nurse, 8 Barn. & Cres., 486. Brudnel vs. Roberts, 2 Wilson, 143. Judgment reversed, and judgment for defendant.