Lametti v. Anderson , 6 Cow. 302 ( 1826 )

Curia, per

Savage, Ch. Justice.

There are but two points in this case of much importance : 1. Can the plaintiffs sustain the action in their own names ?

2. Is the defendant liable for any additions, &c. unless the old house ivas taken down, and a new one erected ?

The objection under the first point is, that the covenant does not run with the land ; and the assignee cannot, therefore, prosecute for a breach : and Spencer's case, (5 Co. 17,) is supposed to sustain the proposition. That case is not in point. The action was brought against an assignee of the term, upon a covenant by the lessee to build a wall on the demised premises ; and the court held him not liable, because not named. In such cases, they held the rule to be, that the covenant was binding Upon the assignee, when it related to' something in esse, parcel of the demised premises, to repair, for instance ; hut not when it concerned something to be built thereafter. Yet it was held, that even the latter covenant wrould be obligatory upon the assignee, if named. The sixth resolution in that case is, “ if lessee for years covenants to repair the houses during the term, it shall bind all others, as a thing which is appurtenant, and goeth with the land, in whose hands soever the term shall come.” It is further resolved, seventhly, that the assignee, or his executor, should have covenant, (id. 18.)

According to this case, had the lessee, Warner, covenanted to erect buildings upon the demised lot; not only the lessee, but the assignee, and the executors of the as-signee, would have been liable in this action for a breach of the covenant. The same doctrine is found in the other authorities cited by the counsel on this point; and in Com. Dig. Covenant, (B. 3.) If the assignee would be liable on such a covenant, surely he must have a right of action, for the violation of a corresponding covenant on the part of the lessor.

The plaintiffs have an undoubted right to maintain the action in their own names, if they have succeeded in shewing a right to recover at all.

I do not consider this either a building or a repairing lease. Those terms are peculiarly applicable to cases where the tenant pays no rent; but enjoys the premises a sufficient length of time to compensate him either for building or repairing, according to his contract. The city of London v. Nash, (3 Atk. 512,) was a case where the lessee undertook to re-build certain houses. He had a lease of them for sixty years. He, or rather his assignee, did not re-build all, but repaired some of the houses. This Was held to be a breach of the covenant.

Here the lessor grants a house and lot for a certain term, at a certain rent. The lessee was not bound to repair any farther than so as, at the end of his term, to return the premises in good tenantable condition ; unless the coven-aut in the lease was compulsory upon him to build. The first covenant is, that the lessee shall surrender, at the end of the term, the “ lot of ground, with ail such buildings and improvements as may be then remaining thereon, he the said Charles Anderson., his heirs or assigns, paying for such of the said buildings and improvements as may be erected and made thereon, by the said Jacob Warner, his executors, administrators or assigns, in manner hereinafter mentioned.” Here it is observable, that the lot was to be surrendered, with all the buildings and improvements then remaining. But Anderson was to pay for such only as may be erected and made by Warner. Now, if it was intended to pull down the old house at all events, this discrimination between the buildings to be surrendered, and those to be paid for, was idle and unmeaning. The next covenant, however, proceeds : “ and it is mutually covenanted and agreed, by and between the parties, &c. that it shall and may be lawful for the said Jacob Warner, his heirs, &e. at any time during the said term hereby granted, at his and their otvn proper costs and charges, to take dowm the said dwelling house, now standing on the said hereby demised lot of ground, and to erect thereon such, buildings as he, the said Jacob Warner, &c. may think proper; and all such buildings and improvements as shall be so erected and made, and remaining on the said lot hereby demised, at the end of the said term, shall then be valued,” &c.; the-money to be paid, not to exceed $1,500. The true construction of this covenant, seems to me to be this : that the lessee might make any alterations which he pleased; and it should be optional with him to take down the old house, and build a new one, or make any other erections which he should think proper; provided the lessor should only pay for such as the lessee left at the end of the term, and which should be impovements; to the amount of $1,500.

I apprehend, however, that a fair construction of the lease does not authorize a recovery for ordinary repairs. It was improper, therefore, to receive evidence of these j such as new covering the old house, dr rebuilding the chimney. The lease does not speak of repairs, but buildings and improvements. That must mean new buildings, or such alterations in the old one as to make it more convenient.

The charge of the judge was correct; but as improper testimony wTas received, a new trial should be granted ; the costs to abide the event.

New trial granted.