M. died indebted on a bond, in which the heirs were bound, having devised his estates in strict settlement; payment of interest by the devisee in possession, who took a life estate, was held to prevent the devisee in tail, in remainder, from setting up the statute when he came into possession. Roddam v. Morley, 1 De G. & J. 7; 26 L. J., Ch. 438; accord., Pears v. Laing, L. R., 12 Eq. 41; and Hollingshead v. Webster, 37 Ch. D. 651, notwithstanding the observations of Ld. Chelmsford, C., in Coope v. Cresswell, L. R., 2 Ch. 112, 126.

As to the application of the Statute of Limitations to actions by and against executors, vide post, Part III., Actions by and against executors.

The following are some of the most material statutes relating to actions on leases or other conveyances of real property, and the issues arising therein.

Where defendant is sued as assignee of the reversion.] By the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), s. 11 (1), "The obligation of a covenant entered into by a lessor with reference to the subject-matter of the lease shall," [if made after Dec. 31st, 1881, see sect. 11 (2)], "if and as far as the lessor has power to bind the reversionary estate immediately expectant on the term granted by the lease, be annexed and incident to and shall go with that reversionary estate, or the several parts thereof, notwithstanding severance of that reversionary estate, and may be taken advantage of and enforced by the person in whom the term is from time to time vested by conveyance, devolution in law, or otherwise; and, if and as far as the lessor has power to bind the person from time to time entitled to that reversionary estate, the obligation aforesaid may be taken advantage of and enforced against any person so entitled."

Where plaintiff sues as assignee of reversion.] By sect. 10 (1), "Rent reserved by a lease" [made after December 31st, 1881, see sect. 10 (2)] "and the benefit of every covenant or provision therein contained having reference to the subject-matter thereof, and on the lessee's part to be observed or performed, and every condition of re-entry and other condition therein contained, shall be annexed and incident to and shall go with the reversionary estate in the land, or in any part thereof, immediately expectant on the term granted by the lease, notwithstanding severance of that reversionary estate, and shall be capable of being recovered, received, enforced, and taken advantage of by the person from time to time entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased."

This section seems to enable the person entitled to the income of the land to sue, although he may not have the legal reversion by interest or estoppel.

Where the lessor at the time of granting a lease has no title, but afterwards acquires one, the lease and reversion take effect in interest, and an action will lie by the assignee of the reversion on the covenants in the lease. Webb v. Austin, 7 M. & Gr. 701, and 728, n.; Sturgeon v. Wingfield, 15 M. & W. 224. And in Cuthbertson v. Irving (4 H. & N. 742; 28 L. J., Ex. 306), it was decided that a mortgagor of premises, having leased them to the defendant by an instrument which did not, and afterwards assigned the reversion by an instrument which did, declare his title, the defendant was estopped from objecting to the equitable title of the assignee. In this last case the interest of the plaintiff was purely one by estoppel. The lessee is not estopped from showing that the lessor had not

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a fee simple in the land demised, provided he does not assert that he had no estate in the land which would give effect to the deed. Weld v. Baxter, 11 Exch. 816; 25 L. J., Ex. 214; 1 H. & N. 568; 26 L. J., Ex. 112. If the lessor's want of title appear on the lease, both parties are estopped from asserting a legal reversion, and the covenants are in gross and not assignable. Pargeter v. Harris, 7 Q. B. 708; and see Saunders v. Merryweather, 3 H. & C. 902; 35 L. J., Ex. 115; and further, post, Action for recovery of land by landlord, and Replevin-Tenancy of the plaintiff. Where a lessee makes an underlease for more than his term, and reserves rent, this rent is assignable by way of estoppel, and the assignee can sue the underlessee for the rent without attornment. Williams v. Hayward, 1 E. & E. 1040; 28 L. J., Q. B. 374. The assignee of part of the reversion in all the land may sue; Co. Litt. 215a; 1 Wms. Saund. 241a (5)(c); so the assignee of the reversion of part of the land; Twynam v. Pickard, 2 B. & A. 105; and so a reversioner who has assigned the reversion of a part only. Swansea, Mayor, &c. of v. Thomas, 10 Q. B. D. 48, cited post, p. 694.

Defence of assignment over of reversion by plaintiff.] The lessor cannot bring an action of covenant on the lease after he has parted with his reversion, for any breach of a covenant running with the land, which has accrued subsequently to the grant of the reversion, but the action can be brought only by the assignee of the reversion; for the stat. 32 Hen. 8, c. 34, has transferred the privity of the contract, together with the estate in the land, to the assignee of the reversion. 1 Wms. Saund. 241 ƒ (6). The defendant may therefore plead that the breach accrued after the assignment by the lessor of his reversion; but as the stat. 32 Hen. 8, c. 34, only applies to leases by deed, such a defence was inapplicable to a claim on a parol lease. Vide ante, p. 338. For the same reason, the defence applied only to covenants which ran with the land. Stokes v. Russell, 3 T. R. 678; affirmed 1 H. Bl. 562; Pargeter v. Harris, supra. The stat. 44 & 45 Vict. c. 41, s. 10 (1), ante, p. 689, however, applies to all leases, whether by deed or parol, made after 31st December, 1881.

Of a similar nature is the question, who is the proper person to sue on the death of the lessor, owner in fee, for breaches of covenant which have accrued in his lifetime? It is laid down that where there are covenants real, that is which run with the land and descend to the heir, though there may have been a formal breach in the ancestor's lifetime, yet if the substantial injury has taken place since his death, the heir, and not the executor, is the proper plaintiff. But the executor may sue for a breach of covenant during the testator's lifetime grounded on the special damage thereby caused to the testator's personal estate; 2 Wms. Saund. 181 c, (k); Kingdon v. Nottle, 1 M. & S. 355; Id. v. Id., 4 M. & S. 53; King v. Jones, 5 Taunt. 418; 4 M. & S. 188, Ex. Ch.; Raymond v. Fitch, 2 C. M. & R. 588, 598; or even although there be no such special damage. Ricketts v. Weaver, 12 M. & W. 718. But, where the covenant does not run with the land, the executor alone can sue. Raymond v. Fitch, supra.

The rights of a mortgagor to sue are now governed by the J. Act, 1873. s. 25 (5), ante, p. 299.

Defence of assignment over of term by defendant.] In an action against the assignee of a term on a covenant in the lease, he may plead that he assigned over the term before breach, for the assignee is only liable for those breaches which have occurred while he is assignee; Taylor v. Shum, 1 B. & P. 21; Paul v. Nurse, 8 B. & C. 486; but for those breaches he may be sued even after he has parted with the term. Harley v. King, 2 C. M. & R. 18. The assignee is not liable for breaches committed before the assignment to him. S. Saviour's v. Smith, 3 Burr. 1271; and see

Coward v. Gregory, L. R., 2 C. P. 153. If the defence be traversed, the defendant must prove the assignment, that is, that the whole term has been legally transferred by him to another. The 8 & 9 Vict. c. 106, s. 3, requires that an assignment should be proved by an instrument under seal. But as an underlease by the defendant for the whole of his term amounts to an assignment (Parmenter v. Webber, 8 Taunt. 593; Beardman v. Wilson, L. R., 4 C. P. 57), and the above section allows leases not exceeding three years to be by parol, it follows that a good assignment of such a lease may be made by way of underlease, without deed or writing. Where the defendant proved that, although he had executed the assignment, it had not been delivered to his assignee, having remained in the hands of the defendant's solicitor, who had prepared it for, and by order of, the assignee, and who had a lien upon it, it was held sufficient. Odell v. Wake, 3 Camp. 394. It would be otherwise if delivered as an escrow, or rejected by the assignee. The defendant need not prove notice to the plaintiff of the assignment; Pitcher v. Tovey, 1 Salk. 81; 4 Mod. 71; nor the assent of the assignee to the assignment, for assent is presumed. Leach v. Thompson, 1 Show. 296; Freem. 2nd ed. 503, (b); see Siggers v. Evans, 5 E. & B. 367; 24 L. J., Q. B. 305; and Hobson v. Thelluson, L. R., 2 Q. B. 642. But his express refusal may, of course, be shown, and perhaps his incapacity to accept. As to infancy, see Valentini v. Canali, ante, p. 644. A reply that the assignment was fraudulent will not be supported by proof that the assignment was to a beggar in order to get rid of liability. Lekeux v. Nash, Str. 1221; Taylor v. Shum, supra; Onslow v. Corrie, 2 Madd. 330. But if there were real fraud, as a secret trust for the benefit of the assignor it would probably defeat the defence, if such fraud were replied. See S. C.; Hyam's case, 1 D. F. & J. 75; 29 L. J., Ch. 243; Ex pte. Bunn, 2 D. F. & J. 297; 31 L. J., Ch. 4; and Ex pte. Bugg, 2 Dr. & Sm. 452; 35 L. J., Ch. 43.

An assignee who takes the demised premises from the lessee by indenture indorsed on the lease," subject to the payment of the rent and the performance of the covenants and agreements reserved and contained in the lease," is not liable in covenant to the lessee for rent which the lessee has been called on by the lessor to pay after the assignee has assigned over. Wolveridge v. Steward, 1 Cr. & M. 644, Ex. Ch.

Defence traversing assignment to plaintiff.] Where the plaintiff sues as assignee of the reversion, and the defendant traverses the title as stated, it will be incumbent upon the plaintiff to prove it, by showing the mesne conveyances from the original lessor. See Carvick v. Blagrave, 1 B. & B. 531.

Where a lease made by cestui que trust under a power in a settlement, with covenants for rent, &c., with the lessor and "his assigns," recited the equitable estate of the lessor, it was held that "assigns" meant assigns of the settlor, and that the assignee of the legal reversion, though not assignee of the lessor, was entitled to take advantage of the covenants and condition of re-entry; Greenaway v. Hart, 14 C. B. 340; 23 L. J., C. P. 115; and that the lessee was not estopped from disputing the lessor's title to sue. Id. The question who are assignees of the reversion, so as to be entitled to sue by virtue of the 32 Hen. 8, c. 34, is usually decided upon the pleading.

The assignee of the reversion cannot sue for breaches of covenant which accrued before the assignment to him. Martyn v. Williams, 1 H. & N. 817; 26 L. J., Ex. 117. And although 1 Vict. c. 26, s. 3, enacts that a right of entry for condition broken shall pass by will, yet this does not extend to an action on a covenant broken in the testator's lifetime.

Defence of surrender.] A surrender of a lease, such as could not be created without writing, must be by deed, 8 & 9 Vict. c. 106, s. 3, unless the surrender be by act and operation of law. The mere destruction of the sealed lease by consent of both parties was, at law, no surrender of the lease by operation of law; and debt lies for rent notwithstanding, for the estate is not divested. Ward, Ld. v. Lumley, 5 H. & N. 87; 29 L. J., Ex. 322. A surrender by the assignee of the lease of part of the premises, does not affect the liability of the lessee for, at any rate, the apportioned part of rent for the remainder of the premises. Baynton v. Morgan, 22 Q. B. D. 74, C. A.

As to what amounts to a surrender by act and operation of law, see ante, pp. 327, 328, and Furnivall v. Grove, 8 C. B., N. S. 456; 30 L. J., C. P. 3.

Defence of eviction.] An action of covenant for non-payment of rent can be defeated by proof of an eviction of the defendant from the premises in question, either by the lessor or one whose title is better than his. Vide ante, pp. 331, 332, where the cases as to what amounts to an eviction and the effect thereof are collected.

Where there has been an eviction, by title paramount, from part of the land demised, the lessor may sue the assignee of the lease in covenant for the apportioned part of the rent, because the action is brought on the privity of estate. Stevenson v. Lambard, 2 East, 575. But the court intimated that, in an action of covenant brought by the lessor against his lessee, it would have been otherwise, as that action is founded on the privity of contract, citing Bro. Contract, pl. 16; Moor. 116. An eviction from part of the subject-matter of the lease was held to be no defence to an action for breaches of covenants to repair, and not to assign or underlet, it not appearing that the defendant had given up possession of the whole. Hodyskin v. Queenborough, Willes, 131, n. (b); Newton v. Allin, 1 Q. B. 518. And it would seem that the tenant, in such a case, cannot discharge himself from his liability to such covenants, by surrendering the residue of the premises, from which he has not been ousted, to the landlord, if the latter refuse to accept possession of them. Morrison v. Chadwick, 7 C. B. 266.

Defence of bankruptcy of the plaintiff.] In an action of covenant for rent the defendant pleaded that the plaintiff became bankrupt after the rent was due. The plaintiff replied that he let the premises in question as trustee for a third person, and had no beneficial interest in the rent. It was held sufficient, under this replication, to show that the plaintiff had from time to time been in the habit of paying over the rent to the person who was stated to have the beneficial interest in the premises, and that there was no need of proving an express declaration of trust under the Statute of Frauds. Houghton v. Konig, 18 C. B. 235; 25 L. J., C. P. 218.

Where defendant is sued as assignee of the lessee.] Where an issue is taken upon the assignment it will be necessary to prove either a transfer of the interest by deed, or facts from which an assignment may by law be inferred. Where the statement of claim states generally that the term has vested in the defendant by assignment, it will be sufficient prima facie evidence to show that the defendant has paid rent as assignee, or is in possession of the premises. 2 Phill. Ev. 125; Peake, Ev., 5th ed., 284. Thus, where A. had been tenant of certain premises, and upon his leaving them, B. had taken possession, it was held that he might be presumed to

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come in as assignee of A., though he had never paid rent. v. Williams, 6 B. & C. 41. The jury may, however, decline to act upon such evidence, and find that there was no assignment in writing. Paull v. Simpson, 9 Q. B. 365. When the defendant has never entered or done anything to admit the assignment, his title may be proved by producing memorials of the mesne conveyances registered by parties under whom the defendant claims, after notice to the defendant to produce the originals. Wollaston v. Hakewill, 3 M. & Gr. 297. In this case it was decided that an executor who had not entered was liable as assignee, unless he discharged himself by pleading that he was no otherwise assignee than as executor, and that he had never entered into possession. Proof that the defendant is executor de son tort, appears sufficient to impose upon him the liability of assignee. Paull v. Simpson, supra. But one who has occupied premises under an executor de son tort, without any legal assignment of the lease, would seem to be free from such liability, except perhaps where the substitution in the tenancy could be proved to be fraudulent. S. C. Where a person has entered into possession of, or received the rents and profits of, premises demised to an intestate, and paid the rent reserved thereon, he is estopped from denying that he is assignee of the term, even though he is not chargeable as executor de son tort. Williams v. Heales, L. R., 9 C. P. 177. Where a term has been assigned by way of mortgage it is not necessary, in an action on a covenant charging the mortgagee as assignee, to prove that he has entered upon the mortgaged premises. Williams v. Bosanquet, 1 B. & B. 238. A trustee to whom a debtor's estate, including a lease, has been assigned for the benefit of creditors is liable as assignee if he do not repudiate the lease. See White v. Hunt, L. R., 6 Ex. 32, where the tenancy was from year to year.

Action against assignee of lease.-Defence.] In answer to this action the defendant may prove that he is not an assignee of the whole term, but only an undertenant. Holford v. Hatch, 1 Doug. 183; Derby, El. of v. Taylor, 1 East, 502. If he be charged as assignee of all the estate in certain premises, and he is in fact an assignee of an undivided part of the premises only, he cannot plead this in bar to the action; Merceron v. Dowson, 5 B. & C. 479; as it amounted to a plea in abatement only. Grattan v. Wall, I. R., 2 C. L. 484. By Rules, 1883, O. xxi. r. 20, "no defence shall be pleaded in abatement." As to the manner in which an objection, formerly pleaded in abatement, is now to be taken, vide ante, p. 91. The defendant is not chargeable as assignee of the land for the entire rent, if the assignment be of part only. Curtis v. Spitty, 1 N. C. 756. The defendant may show that he is only devisee of the equity of redemption, the legal estate being in the mortgagee; Carlisle, Mayor of v. Blamire, 8 East, 487; or only appointee, and not liable as such on a covenant binding the assigns of the appointor. Roach v. Wadham, 6 East, 289.

Formerly many questions arose as to the effect of a lessee's bankruptcy on the covenants entered into by him in his lease; and much difficulty arose under the earlier Bankrupt Acts as to whether the assignee had or had not accepted the lease so as to be liable on the covenants thereof. These questions do not, however, arise under the Bankruptcy Act, 1883, which is now in force. Vide ante, p. 328.

As to what covenants run with the land, so as to bind the assignees, see Spencer's case, 1 Smith's L. Cas. and notes.

Action for rent under indenture of demise.] The action may be in the form of debt for the rent reserved by the lease, or of covenant_on_the