11. DEFEND ANTS. erty or the estate thereon (e) (1) the assignee of the lessee is liable to an action for a breach of covenant after the assignment of the estate to him (h) (2), and although he afterwards re-assign or assign to a third party, he con- 3. When tinues liable for all breaches accruing whilst the term was legally vested in interest, him (i), and though he have not taken possession (k). And executors or &c. as signed. administrators of a lessee may be sued as assignees of the term if they accept the term, though if one of two executors of a lessee enter, such entry does not enure as the entry of both so to make them jointly liable to an action for use and occupation (1). But his liability ceases when he assigns his interest, though even purposely, to a married woman, or an insolvent person (m); and although the lease contain a covenant not to assign; for the assignment destroys the privity of estate (n). The same rule prevails in equity (6). If the covenant be merely collateral and personal, an assig nee is not in any case liable, and the lessee alone can be sued (p). Upon a covenant running with the land, the lessee or the assignee of the lessee, may sue the reversioner for a breach of it (q), as well in case of freehold as copyhold (r). An assignee of a lease, to whom an assignment has been made by way of mortgage security, is liable for the rent, although he has never entered, or taken actual possession (8) (3). Debt cannot be supported against the assignee of part of the land demised by a lease, but only against the assignee of the whole (t), though covenant is sustainable (u). When there is an express covenant in a lease to pay rent or perform any other act, the original lessee, and his personal representatives, having assets, are liable to an action of covenant during the lease for non-performance of covenants; notwithstanding, before the breach complained of, the interest in his lease has been assigned, and rent has been accepted from (e) 3 Wils. 29; 2 H. Bla. 133; 10 East, 138, 139; 2 Marsh. 1, 4. As to what is a covenant running with the land, see 5 B. & A. 1; 4 B. & A. 266; 1 B. & C. 410; 3 Moore, 45; 2 Chit. Rep. 482, 608; ante, 17. (h) 32 H. 8, c. 34; Bac. Ab. Covenant, E. 34; 3 Wils. 25; 2 Saund. 304, n. 12; Platt on Cov. 489. As to the liability of the assignee of part of the premises, 5 B. & C. 479, 484; 8 D. & R. 264, S. C. The leading principles, as to the construction of covenants of this description, in which an assignee has or has not a right to sue, are laid down in 5 Rep. 16. An assignee of a lease under covenant to repair, without qualification, must repair the premises if destroyed by fire, 2 Chit. Rep. 608. The assignee of the lessee is bound to protect the latter from liability, although the assignment contain no covenant so to do. 5 B. & C. 589: 8 D. & R. 368, S. C., and see Flight v. Glossopp, 2 Bingh. N. C. 15. (i) Harley v. King, 1 Gale R. 100; 2 Cr. M. & Ros. 18. (k) Woodfall, L. & T. 7th edit. 113; 7 T. R. 312; 2 Saund. 182; 1 Salk. 198; 1 Lord Raym. 322; 1 B. & B. 238; 3 Moore, 500, S. C. acc.; Dougl. 438, cont. (1) Nation v. Tozer and another, 1 Crom. (m) 1 B. & P. 21; Bac. Ab. Covenant, (0) Onslow v. Currie, 2 Mad. 330; 2 Atk. (p) Bac. Ab. Covenant, E. 3, 4; 3 Wils. 25; 2 Saund. 304, n. 12. (1) 4 B. & A. 266. (r) 1 Saund. 241 a; ante, 18, 19. (1) Nesbit v. Nesbit, Cam. & N. 324; Norman v. Wells, 17 Wend. 136. (2) Vide Polland v. Shaeffer, 1 Dall. 210. Debt for rent reserved by indenture may be sustained by an assignee of the lessor against an assignee of the lessee. Howland v. Coffin, 12 Pick. 125; S. C. 9 Pick. 52. (3) In Pennsylvania one who owns the equitable interest in land, and who as the owner of such interest is in the constructive possession, and may receive the income of it, is liable in covenant, as assignee, for a ground rent charged thereon, although the legal title is in another, and no trust appears by the deed. Berry. M'Mullen, 17 Serg. & Rawle, 84. II. ANTS. 3. When the assignee (v) (1). But an action cannot, it seems, be supported against DEFEND the lessee, or his personal representatives, for a breach of a covenant merely implied by law, committed after acceptance of rent from the assignee (a); nor can the lessor, after such acceptance of the assignee, maintain an action of debt against the lessee or his representatives, even upon an express covenant (w). interest, &c assigned. 4thly. of several obligors, An under-lessee (2), not having the whole of the lessee's interest assigned to him, cannot be sued by the original lessor for any breach of covenant contained in the original lease (x); though for voluntary and not mere permissive waste he would be liable to an action on the case (y). In the case of a joint contract, if one of the parties die, his executor or When one administrator is at law discharged from liability, and the survivor alone can be sued (2) (3); and if the executor be sued, he may either plead the survivorship in bar, or give it in evidence under the general issue (a) (4) ; but in equity the executor of the deceased party is liable, unless in some instances of a surety (b) (5). If the contract were several (6) or joint and several, the executor of the deceased may be sued at law in a separate &c. is dead. (v) 4 Saund. 241, note 5. 1 T. R. 92; 7 (a) 1 Saund. 241 b; 4 T. R. 98; 1 Sid. (n) 1 T. R. 92; 1 Saund. 241, n. 5, see post; 5 Taunt. 452, (x) Dougl. 183. (y) 2 Bl. Rep. 1111; 1 Moore, 100; 6 Taunt. 301; 1 New Rep. 290; post. (z) 2 Marsh. Rep. 302; 6 Taunt. 587; Bac. Ab. Obligation, vol. v. D. 4; Vin. Ab. Obligation, P. 20; 2 Burr. 1196; 1 Meriv. 562, 566; 2 Meriv. 30. The rule is so (upon a judgment against several) as to the personalty, but not as to realty, 2 Saund. 56, n. 4; Tidd, 9th edit. 1121; 1 B. & A. 31; see 47 Geo. 3, sess. 2, c. 74. (a) 5 East, 261. (b) Bac. Ab. Obligation, vol. vii. Addenda, Obligation, 506; 2 Vern. 277, 292; 3 Ves. 399. 2 Ves. J. 106, 244, 265; Lane v. Williams, 2 Vern. 277, 292; Chitty on Bills, 8 edit. 50; Daniel v. Cross, 3 Ves. 277; Anderson v. Maltby, Bro. C. C. 423; 2 Ves. J. 244, S. C.; Jacomb v. Harwood, 2 Ves. 265; Devaynes v. Noble, 1 Mer. 568. Quare, whether equity would give relief against the executor, if the creditor could obtain payment from the surviving partner. (1) Vide Knuckle v. Wynick, 1 Dall. 305. (2) A declaration in covenant for rent, against the assignee of a lessee, averring that the rent accrued subsequent to the assignment to the defendant, was due and owing to the plaintiff's testator, and still remains wholly in arrear, and unpaid to the defendant, states a breach in sufficient terms; and it is unnecessary to go further and say that the lessees had not paid it, for that was already implied in the averment that the defendant owed it. Dubois v. Van Orden, 6 Johns. 105. (3) Vide Foster v. Hooper, 2 Mass. 572, ante, 28, n. 1; Atwell v. Milton, 4 Hen. & Mun. 253; Chandler v. Neil, 2 Hen. & Munn. 124; Braxton v. Hilyard, 2 Munn. 49; Simonds v. Center, 6 Mass. 18; Ayer . Wilson, 2 Con. Ct. 319; Bunoy v. Williams, 1 Root, 343; Rowan v. Woodward, 2 Marsh. 140; Lawrence v. Interest, 2 Penn. 724; Poole v. M'Leod, 1 Smedes & Marsh. 391. In Tennessee, by statute, a joint action will lie against a surviving partner, and the representatives of the deceased partner. Simpson v. Young, 2 Humph. 514; Taylor v. Taylor, 5 Humph. 110. (4) Burgwin . Hosterer, Tayl. 124; S. C. 2 Hayw. 154, nom. Burgwin v. Rowan v. Woodward, 2 Marsh. 140. Vide Jenkins v. De Groot, 1 Caines Cas. in Err. 122; Lang v. Keppele, 1 Binn. 123. Vide Harrison v. Field, 2 Wash. 136; Weaver v. Shryock, 6 Serg. & Rawle, 262. In the case of a joint contract, if one of the parties die, his executor is at law discharged from liability, and the survivor alone can be sued, he may plead the survivorship or give it in evidence under the general issue. Grout v. Shurter, 1 Wend. 148. The doctrine which allows an action against the executor, is applicable to cases where the contract, by the express assent of the parties, is made joint and several. It does not authorize a creditor to sue the executor or administrator of a deceased partner, ib. II. DEFEND ANTS. dead. action (c); but he cannot be sued jointly with the survivor, because one is to be charged de bonis testatoris, and the other de bonis propriis (d) (1). When the surviving party dies, his executor or administrator is to be made 4thly. defendant (e)(2). It is not unusual to declare, at least in one count, against When an the survivor as such, noticing the death of his co-obligee or co-partner (f); obligor is but the survivor or his executor may be declared against, without noticing the first deceased party (g) (3); and in an action against such survivor, a debt which became due from himself separately, before or after the death. of his partner, may be included (h); and when the survivor is sued for his own separate debt, he may set off a demand due to him as surviving partner (i) (4). heirs and When the contracting party is dead, his executor or administrator, or, [ *51 ] in case of a joint contract, the executor or administrator of the survivor, ease of 5thly. In is the party to be made defendant (j), and is liable though not expressly executors named in the covenant (5) or contract. But no action lies against execu- or admintors upon a covenant to be performed by the testator in person, and which istrators, consequently the executor cannot perform (k); or for the breach of a per- devisees. sonal contract where the breach can occasion no injury to the personal estate of the testator, or intestate, and where therefore the remedy dies with the person as a breach of a promise of marriage (1) (6). The executor of a lessee is liable as such upon a breach of covenant committed after the testator's death, by the assignee of the lease (m) (7). In a recent case, the Court of Common Pleas held, that the executors of a lessor, who was tenant for life, are not liable to the lessee to whom a term of years was (h) 2 T. R. 476; 6 T. R. 582. See, as to joinder of actions, post. (i) 5 T. R. 493; 1 Esp. R. 47. (j) 9 Co. 89 a; 3 Bla. Com. 302; 1 Com. on Contr. 258. (k) 3 Wils. 29; Cro. Eliz. 553; 1 Rol. Rep. 359. (1) 2 M. & Sel. 408; 1 Com. on Contr. 528; ante, 19. (m) 10 East, 313. (1) In North Carolina, by statute, an administrator of a deceased joint obligor may be sued jointly with the surviving obligor. Brown v. Clary, 1 Hayw. 107; Davis v. Wilkinson, ib. 334; Tifton v. Harris, Pick. 414. (2) The executors or administrators of two deceased obligors cannot be joined in the same action. Watkins v. Tate, 3 Call. 521; Grymes v. Pendleton, 4 Call. 130; Head v. Oliver, Marsh. 251. (3) Raborg v. The Bank of Columbia, 1 Harr. & Gill. 231. Thus, in an action of assumpsit for goods, which were sold to two partners, against the survivor, it is unnecessary to notice the survivorship. Goelet v. M Kinstry, 1 Johns. Cas. 405. In Harwood v. Roberts, 5 Greenl. 441, it was held that in an action against two of four joint and several promisors, if it is stated in the writ that four promised, it is material also to allege, that the other two are dead, or otherwise incapable of being sued; or it will be bad, and may be reversed on error. (4) Vide Hogg's Executors v. Ashe, 1 Hayw. 477. (5) Harrison v. Sampson, 2 Wash. 155; Lee v. Cooke, 1 Wash. 306. (6) Lattimore v. Rogers, 13 Serg. & Rawle, 183. (7) Where there is an express covenant in a lease in fee for the payment of rent, the executors of the lessee are liable for the rent accruing subsequent to the testator's death, as far as they have assets, although the land has gone into the hands of the heir. Van Rensselaer v. Platner, 2 Johns. Cas. 17. But covenant does not in such case lie against them by the devisees of the grantor. Van Rensselaer v. Platner, Id. 24. II. granted, for the breach of the implied covenant, or covenant in law, for quiet enjoyment resulting from and created by, the word demise, the lessee 5. Execu- having been evicted by the remainder-man (n). DEFEND- tors, heirs, &c. If a person intermeddle as executor with the estate of the deceased, he may in general be sued as executor de son tort, although there be a lawful executor (o); and in such case he is uniformly declared against as if he were a lawful executor, though the party died intestate, and he may be joined in the same action with the lawful executor (1), though not with the lawful administrator (p); and if the husband of an executrix after her death detain part of the goods of the testator, he may be sued as executor de son tort (q). So if a stranger take away the goods of the deceased, and there be no lawful executor, he also is liable to be sued as executor de son tort (2), though he claim them as his own (r); but in this case if there be a lawful executor or administrator, the stranger cannot be sued as executor de son tort (s). And no person can ever be sued as administrator de son tort (3), nor can an executor de son tort of an executor de son tort be sued as such at law (t). The 3 & 4 W. 4, c. 42, s. 14, gives an action of debt on simple contract against an executor or administrator in any Court of law. If there be several executors, they should all be sued, in case they have all administered and have assets, or the defendant may plead the non-joinder in abatement; but if one hath not proved, nor administered, he may be [52] omitted (u). A plaintiff who sues several persons as executors, shall not be defeated in toto upon causes of action stated in the declaration to have accrued to the deceased, merely on the ground that one of the defendants was not an executor, and succeeded on his plea to that effect; but in such case the plaintiff cannot recover on counts laying promises by the defendants as executors (v). So if several executors plead plene administravit, the plaintiff may succeed as one of them only (4). If a married woman be executrix, the husband must be joined in the action (w): and an infant cannot be an executor till he be of full age (x); nor can an executor be (n) Adams v. Gibney, 6 Bing. 656. (0) 5 Co. 34 a. R. 565. Several executors, though of different things, and though not jointly appointed, (p) 1 Saund. 265, n. 2; Com. Dig. Ad- &c. may be joined in an action. 1 Vin. ministrator, C. 3; Toller, 369, 340. (4) 5 Cro. Eliz. 472. (r) 5 Co. 33 b. (s) 5 Co. 34 a. (t) Mod. 293, 294; Andr. Rep. 252. (u) Toller, 367; 1 Moo. & P. 663; 4 T. Ab. 139; Cro. Car. 293. As to plaintiff's (v) 1 M. & M. 146; 1 Saund. 207 a. (1) Though a person who is sued as executor de son tort, shall not defeat the suit by taking out letters of administration pending the suit, because the suit was well commenced; yet such an administration will legitimate all intermediate acts ab initio; and justify a retainer. Vaughan . Brown, Str. 1106; S. C. Andr. 328; Curtis v. Vernon, 3 Term 587; Rattoon v. Överacker, 8 Johns. 126. (2) Glenn v. Smith, 2 Gill & Johns. 494; Campbell v. Toussey, 7 Cowen, 64. And may be sued as executor generally. Id. (3) At common law an action of account did not lie against an executor for want of privity, but such action is now given by statute 4 & 5 Ann. c. 16. The first thirteen sections of which are in force in Pennsylvania, and the 20th and 27th sections. Roberts' Dig. 43; Griffith v. Willing, 3 Binn. 317. Laws N. Y. sess. 36, c. 75, s. 5. 1 R. L. 311, against the executors or administrators of every guardian, bailiff, or receiver. Litt. § 125. C. Litt. 90 b. F. N. B. 117. E. Com. Dig. Accompt, D. (4) App. v. Driesbach, 2 Rawle, 287. II. DEFEND ANTS. 5. Executors, heirs, sued as such for money lent to (y), or had and received by him (2), or upon If the contract be under seal, (or of record), the heir of the party contracting is liable to an action for the breach of an express covenant therein; provided the ancestor expressly bound himself "and his heirs" by the deed or obligation; and provided the heir have legal assets by descent from the obligor (d) (2). And if there be a devisee, (otherwise than for the payment of debts, or in pursuance of a marriage contract entered into before marriage,) he may be sued in an action of debt for the breach of a contract of the testator under seal, or of record; but the heir must be joined in the action; and an action of covenant cannot in any case be supported upon a personal contract against a devisee, the statute 3 & 4 W. & M. only giving an action of debt (e). Though the devisee be an infant, he cannot pray the parol to demur by reason of his non-age (3), such privilege being confined to an infant heir (f). But an equity of redemption is not assets at law, in respect of which an heir or devisee is chargeable, and the creditor must proceed in a Court of Equity (g). An heir or devisee hav- [ *53 ] ing a legal estate, is liable to an action for the breach of a covenant running with the land committed in his own time (h). If there be several heirs as in the case of gavel-kind, or of parceners, they should all be joined, or the defendant may plead in abatement (i) (4); and a devisee must be sued with (y) 1 Hen. Bla. 119; 2 Saund. 117 d; 4 T. R. 347. As to suing him as such, for funeral expenses, see 3 Campb. 298; or money paid, see 7 B. & C. 444, 449; 1 Man. & R. 180, S. C.; account stated, 7 Taunt. 580; 1 Moore, 305, S. C. (z) 7 B. & C. 444; 1 Man. & R. 180, S. C. (zz) Carth. 361; Cro. Eliz. 766; Com. Dig. administrator, B. 15. (a) See 7 T. R. 350; 3 B. & B. 460. (b) 2 B. & B. 460; 5 Moore, 282, S. C. (c) See Went. Off. Ex. chap. 2, p. 76, 14 ed.; Needham's case, 8 Coke R. 136; Wankford v. Wankford, 1 Salk. 306; Crosman's 97. (1) Such as giving up securities against the testator's estate. See Clark v. Herring, 5 Binn. 33. Stebbins v. Smith, 4 Pick. (2) So, the heir of the heir is liable as far as he has assets by descent from the original obligor. Walker v. Ellis 2 Mun. 88. In the state of New York, heirs are liable on a simple contract or specialty, whether mentioned therein or not, in case the debtor died intestate seised of lands, &c. and the heirs of devisees in case he made a will. Laws of N. Y. sess. 36, c. 93, s. 1; 1 R. L. 316; Rev. Stat. 452, s. 82; Etting v. Vanderlyn, 4 Johns. 234. (3) In the State of New York, in a personal action against either heirs or devisees, the parol shall not demur; but no execution shall issue within a year after rendition of judg ment, sess. 86, c. 93, s. 6, 1 R. L. 318; 2 Rev. Stat. 454, s. 42, 455, s. 55. (4) Heirs, and assigns by deed, are jointly chargeable for breach of a covenant real of their ancestor. Morse v. Aldrich, 1 Metcalf, 544. |