Darmstaetter v. Hoffman

Grant, C. J. (after stating the facts). Is defendant liable for the rent? It is the rule that the assignment of a lease, and its acceptance by the assignee, carries with it the obligation to pay the rent. The covenant to pay rent runs with the land. When the assignment .is absolute and for the entire term, or for a part of the premises for the entire term, the assignee succeeds to all the rights and [50] liabilities of the original lessee. Lee v. Payne, 4 Mich. 106; Fennell v. Guffey, 155 Pa. St. 38; Le Gierse v. Green, 61 Tex. 128; Tayl. Landl. & Ten. §§ 16, 448, 450; 1 Wood, Landl. & Ten. § 337. Defendant therefore became liable to pay the rent to some one. This brings us to the question, Can plaintiffs maintain the action, and that before paying the rent to Hubbard & King? Plaintiffs’ counsel contend that the defendant is virtually the lessee of the plaintiffs, and not of the original lessors, for .the reason that Hubbard & King have not looked to the defendant for the rent. As already shown, the covenant to pay rent runs with the land, and the assignee becomes liable to the original lessor, unless there is some provision in the lease or assignment to the contrary. Under such leases the original lessee could not sue his assignee to recover the rent due, until he had paid the lessor. But in this case the lessors have not consented to the assignment. There is nothing in the record to indicate that they had any knowledge of it, or had done any act which' could operate as a waiver of this covenant in the lease not to assign. Until Hubbard & King had assented in writing, or had recognized defendant as their tenant, that relation did not exist. The assignment was in direct violation of the terms of the lease. We do not think that the defendant is in a position to deny his liability to plaintiffs until he has made some arrangement with the original lessors validating the assignment. No relation of landlord and tenant exists between the defendant and Hubbard & King until they waive this covenant. We are therefore of the opinion that defendant is not in a position to deny his obligation to pay to plaintiffs, and that they may maintain suit before payment to Hubbard & King. Judgment affirmed. The other Justices concurred.