CHAP. IV. the statutes relating to bankruptcy; it therefore becomes unnecessary to distinguish between the effect of these statutes, and those affecting the property of bankrupts.

By operation of law.

Marriage.

The estates whereof a feme sole is seised do not, upon her marriage, vest in her husband; but he is entitled to the rents and profits during coverture, and may by the birth of a child become tenant for life by curtesy. If there be a lease by the wife dum sola, with rent reserved, the rent should be paid to the husband; payment to the wife, without the husband's order, would not discharge the lessee. The husband may grant leases of his wife's lands, and may distrain for rent reserved or due upon the covenants in the lease. If, however, the wife dies without issue by him, his estate is determined, and the lease may be avoided by the entry of the wife's heir; but until it has been avoided by such entry, the lease will be operative (p). The chattels real of a feme sole vest in the husband upon her marriage; but not absolutely, for if he makes no disposition of them in his lifetime, they survive to his wife (g). He may, if he pleases, sell, surrender, or dispose of the chattels real; and if he be outlawed or attainted, they will be forfeited to the queen. They may be taken in execution for his debts; and if he survives his wife, they become his own absolutely, and this without taking out letters of administration to her (r). If the husband makes no disposition of these chattel interests in his lifetime, and dies before his wife, he cannot dispose thereof by will (s); for having made no alteration in the property during his life, it was never transferred from the wife, and after his death she will remain in her ancient possession. If a man marry

(p) Com. Dig. " Baron et Feme," O.; and see Hill v. Saunders, 4 B. & C. 536.

(9) Co. Litt. 46, 351; Wildman v. Wildman, 9 Ves. jun.

177.

(r) Co. Litt. 300; Moody v. Mathews, 7 Ves. jun. 183.
(s) Co. Litt. 351; Poph. 5.

By operation

of law.

a woman who has a trust term of years, he may dispose CHAP. IV. of this trust as if the legal interest were in her (t). The property which a woman has in autre droit as executrix does not vest in her husband, and she may dispose thereof Marriage. without his consent (u).

Upon the death of a landlord or tenant, the heir, or devisee, or executor, or administrator becomes an assignee in law. Real estates as distinguished from chattel interests vest in the heir if not disposed of by will; and the heir is liable upon the covenants made by a lessor, whether the breach thereof have been committed in the lifetime of such lessor or subsequent to his decease. The right of the heir to sue upon covenants made with the lessor, is confined to such breaches of covenant as have been committed since the death of the lessor; for the executor or administrator only can sue in respect of the breaches committed during the lessor's life. This right to sue vests in the heir, whether he be named in the covenant or not. If the real estate be disposed of by will, the devisee will have similar rights and liabilities (r). A man may devise all the real and personal estate which he is entitled to, either at law or in equity, at the time of his death (y); but if chattel interests, whether in possession or reversion, be devised, the devisee must have the assent of the executor before he can enter or acquire the rights and liabilities of an assignee. An executor is the assignee in law of a term according to the well known distinction between assigns in law and assigns in fact (≈). The executor of a lessee, however, is not liable as assignee in respect of the rent, if the property is of no value; and generally, his liability does not exceed what

(t) Turner's case, 1 Vern. 7, 18; Incledon v. Northcote, 3 Atk. 435.

(u) Tucker v. Tucker, 4 M. & Gr. 1076.

(1) Com. Dig." Estate," L. M.

(y) 7 Will. 4 & 1 Vict. c. 26.

(3) Wollaston v. Hakewill, 3 M. & Gr. 321.

Death.

By operation of law.

Death.

CHAP. IV. the property yields (a); but if the premises are deteriorated in value through the want of repair, which the lessee ought to perform, the executor cannot avail himself of that circumstance to discharge himself from liability beyond the value of the premises (6); nor is it any answer to a claim against him for rent, to say, the premises are underlet, and the underlessee has not paid the rent. This exempton from liability beyond what the property yields, does not extend to repairs (c). The right of an executor to the estate of his testator is derived from the will; but he is in possession in point of law from the time of the death, and before probate is granted (d); the probate however is the only admissible evidence to prove such right (e). Where one of two executors of a deceased tenant for a term of years entered into the demised premises; it was held, that such entry did not enure as the entry of the two, so as to make them liable in an action for use and occupation (ƒ). An executor is however liable on all covenants of his testator which run with the land; and before entry this liability is founded on privity of contract, after entry there is both privity of contract and privity of estate. In the first case he must be sued in his representative character, and the judgment will be de bonis testatoris; but after entry he becomes liable de bonis propriis as assignee (g); by stat. 3 & 4 Will. 4, c. 42, s. 2, it is provided, that executors may sue and be sued for injuries to the real estate of the person they

(a) Rubery v. Stevens, 4 B. & Ad. 241; Tremeere v. Morrison, 1 Bing. N. C. 89; Reid v. Lord Tenterden, 4 Tyr. 111. (b) Hornidge v. Wilson, 3 P. & D. 651.

(c) Tremeere v. Morrison, 1 Bing. N. C. 89; Hornidge v. Wilson, 3 P. & D. 651.

(d) Smith v. Milles, 1 T. R. 480.

(e) Rex v. Netherseal, 4 T. R. 258.

(f) Nation v. Tozer, 1 C. M. & R. 172; For v. Waters, 12 A. & E. 43.

(g) Rubery v. Stevens, 4 B. & Ad. 241.

125

of law. Death.

represent committed within six calendar months before CHAP. IV. the death of such person. Administrators are assignees By operation in law of the party they represent, and have similar rights and liabilities to those of executors. They derive their authority from the ordinary, and the estate and interest of the party they represent vest in them on the grant of letters of administration; but the grant has relation back to the time of the intestate's decease (h).

liabilities of

Both landlord and tenant are bound by express cove- Rights and nants between them, for there is not only privity of assignees. estate existing between them, but also privity of contract; with respect, however, to covenants in law, these are only binding on them by reason of the privity of estate (i). Where, however, the reversionary interest of the lessor, or the possessory interest of the lessee has been assigned to a third person, there will be only privity of estate between that third person and the other original party to the contract of tenancy; and the rights and liabilities of that third person or assignee have now to be considered.

lessor.

And first with respect to the assignee of a lessor. The Assignee of better opinion seems to be, that the assignee of the reversion could not bring an action of covenant at common law (k); or in other words, that covenants did not run with the reversion. The stat. 32 Hen. 8, c. 34, after reciting that by common law no stranger to any covenant could take advantage thereof, but only such as were parties or privies thereunto, enacted, "that all persons and bodies politic, their heirs, successors, and assigns, having any gift or grant of the king of any lands or other hereditaments, or of any reversion in the same which belonged to any of the monasteries, &c. dis(h) Toll. on Executors.

(i) Bachelour v. Gage, Sir W. Jones, 223; Anon. 1 Sid. 447; Auriol v. Miles, 4 T. R. 98.

(k) Thursby v. Plant, 1 Wms. Saund. 240, n. 3.

assignee of

CHAP. IV. in a particular manner (b), to reside on the premises (c), Rights and not to carry on a particular trade (d), to permit the lessor liabilities of to have free passage to two rooms excepted in the delessee. mise (e), and the like. It is to be observed, however, that the question, whether particular express covenants do or do not run with the land, is frequently one of great nicety; thus, where the covenant was to keep buildings within the bills of mortality insured, it was held, that with the aid of the stat. 13 Geo. 3, c. 78, which enables the landlord to have the sum insured employed in reinstating the premises, the covenant amounted to a covenant to repair, and therefore was one running with the land (ƒ); and where a lessee covenanted to grind all the corn grown on the close demised at the lessor's mill, the covenant was held to run with the land (g). The assignee of a lessee is not however liable on mere collateral covenants, as where a lessee covenanted to pay annually during the term twenty shillings to the churchwardens of the parish (h); but if the covenant regard something to be done upon the land, as to build a wall or a new house thereon, this, though in some measure collateral, would be binding on the assignee (i). Covenants of a third person, whether connected with the land or not, made with the owner of the land, provided the covenantee at the time of making them has the land to which they relate, may be enforced by the assignee (k); cove

(b) Cockson v. Cock, Cro. Jac. 125.

(c) Tatem v. Chaplin, 2 H. Bl. 133.

(d) Mayor of Congleton v. Pattison, 10 East, 136.

(e) Cole's case, 1 Salk. 196; 1 Show. 389.

(f) Vernon v. Smith, 5 B. & A. 1.

(g) Vyvyan v. Arthur, 1 B. & C. 415; see also Easterby v. Sampson, 9 B. & C. 505, and 6 Bing. 644.

(h) Mayho v. Buckhurst, Cro. Jac. 438; Bateman v. Allen, Cro. Eliz. 437.

(i) Com. Dig. tit. "Covenant," C. 3; Bull. N. P. 159.

(k) Smith's L. C. note to Spencer's case, and cases there cited.