66 means come to the king's hands, since the 4th day of February, A. D. 1535, or which at any time before the passing this act belonged to any other person, and after "came to the hands of the king, and all other persons being grantees or assignees to or by the king, or to or by (30) any other person than the king, and their heirs, executors (31), successors, and assigns, shall have like advantages 66 against the lessees, their executors, administrators, and "assigns, by entry for non-payment of the rent, or for doing "waste or other forfeiture (32), and by action only for not 66 performing other conditions, covenants, or agreements "expressed in the indentures of leases and grants, against "the said lessees (33) and grantees, their executors, ad"ministrators, and assigns, as the said lessors and grantors, "their heirs or successors, might have had. By s. 2. all "lessees and grantees of lands or other hereditaments for "term of years, life, or lives, their executors, administrators, or assigns, shall have like action and remedy against all persons and bodies politic, their heirs, successors, and assigns, having any gift or grant of the king, or of any 66 (30) It seems to have been the opinion of the court in Lee and Arnold's case, 4 Leo. 29. that the bargainee of a reversion, by bargain and sale, indented and enrolled, was an assignee within this statute, though he hath but an use by the act of the party, and the possession by stat. 27 H. 8. (31) In respect of this word, it hath been holden, that an assignee of part of the reversion, as an assignee of the reversion for years, of all the estate demised, may enter for condition broken. Mathres v. Westwood, B. R. H. 40 Eliz. Cro. Eliz. 599, 600. 617. Moor, 527. S. C. 1 Inst. 215. a. But the grantee of the whole estate in reversion in part of the thing demised, is not within the meaning of the statute, as if the reversioner in fee of 4 acres grants 2 acres in fee, the grantee cannot enter, because conditions cannot be apportioned by act of the party, 4 Leo. 27. (32) Although the words of the statute be for non-payment of the rent, or for doing of waste or other forfeiture, yet the grantees or assignees shall not take advantage of every forfeiture by force of a condition, but of such conditions only, as either are incident to the reversion, as rent; or for the benefit of the estate, as for keep→ ing the house in repair, for making fences, scouring ditches, pre serving woods, or such like, and not for the payment of any sum in gross, delivery of corn, wood, or the like. 1 Inst. 215. b. Moor, 876. pl. 1228. (33) This statute does not extend to covenants upon estates tail. 1 Inst. 215. a. See also the preamble. "other persons, of the reversion of the same lands and "hereditaments so letten, or any parcel thereof, for any con"dition or covenant, expressed in the indentures of their "leases, as the same lessees might have had against the said "lessors and grantors, their heirs and successors." The first section of the preceding statute gives to the assignee of the reversion two remedies, one, by entry for nonpayment of rent, doing waste, or other forfeiture; and the other, by action, for not performing other conditions, &c.; and as the remedy by entry, according to the construction made by Sir Edward Coke, 1 Inst. 215. b. is confined to forfeitures by force of such conditions, as either are incident to the reversion, or for the benefit of the estate; so it hath been resolved, that the remedy by action is confined to the breaches of such covenants, as relate to the thing demised, And on this ground, where and not to collateral covenants. the mortgagor and mortgagee of a term made an under-lease, in which the covenants for the rent and repairs were with the mortgagor and his assigns only; it was holden, that the assignee of the mortgagee could not maintain an action for the breach of these covenants; because they were not covenants running with the land, but collateral covenants, being entered into with a stranger to the land, that is the mortgagor, who had only an equity of redemption. If the estate in reversion, in respect of which the condition or covenant was made, be extinguished, the condition or covenant is also extinguished: As where a lease was made for 100 years, and the lessee made an under-lease for 20 years, rendering rent, with a clause of re-entry; and afterwards the original lessor granted the reversion in fee, and the grantee purchased the reversion of the term; it was holden, that the grantee should not have either the rent, or the power of re-entry; for the reversion of the term to which they were incident, was extinguished in the reversion in fee (34). Tenants in common of a reversion may maintain covenant against the assignee of the term for the recovery of arrears of rent, although it should appear, that at the time of action e Spencer's case, 5 Rep. 18. a. (34) Kenyon, C. J. delivering the opinion of the court in Webb v. Russel, 3 T. R. 402, 3. He who enters for condition broken must be in of the same estate, which he had at the time of the condition created." 4 Rep. 120. b. brought the reversion was out of the plaintiffs, they having granted it over, after the rent became due. N. In Glover v. Cope1, B. R. Pasch. 3 W. and M. Carth. 205. it was adjudged, after two solemn arguments, by Holt, C. J. and the court, that the grantee of the reversion of copyhold lands was within the intention and equity of the preceding statute, which is a remedial law, and of great and universal use, and absolutely necessary as well for copyholders as others; and that by this construction of the statute the lords of copyhold manors could not be injured. A remainder-man is an assignee of the reversion within this statute: Devise to A. for life, remainder to B. for life, &c. with power to make leases for 21 years; A. leases for 14 years, by indenture, in which lessee covenants with lessor, his heirs and assigns, for payment of the rent to lessor, and such other person as should be entitled to the freehold, &c. A. dies pending the term, and after the death of A. rent becoming in arrear, B. brings covenant; held that it would lie, for B. is, within the meaning of the statute, an assignee of the reversion of that estate out of which the lease is granted. Lessee for years assigns over his term by indenture to J. S.', and in the same deed he covenants that J. S. and his assigns shall enjoy the land during the term without interruption from any person; after which J. S. assigns over the term by parol, and the assignee being disturbed brought an action of covenant; and adjudged, that it well lies; although the assignment was not by writing (35) because the assignee was privy in estate. A person to whom an apprentice is assigned according to the custom of the city of London,, cannot maintain covenant on the indenture of apprenticeship to which he is not a party; because custom cannot make an assignee, so as to entitle him to an action. h Midgley and another v. Lovelace, 1 Awder v. Nokes, Cro. Eliz. 436. reCarth. 289. 12 Mod. 45. S. C. cognised and briefly stated in 3 Rep. 63. a. i3 Lev. 326 Skin. 305. S. C. k Isherwood v. Oldknow, 3 M. and S. 382. m Barker v. Beardwell, 1 Show. 4. (35) But now by stat. 29 Car. 2. c. 3. s. 3. leases, estates, or interests, either of freehold, terms of years, or uncertain interest, cannot be assigned, unless by deed or note in writing, signed by the assignor or his agent, or by operation of law. V. Against whom the Action of Covenant may be maintained, 1. Heir. 2. Executor. 3. Assignee. 1. Against Heir,-AN action of covenant will lie against the heir on a covenant by his ancestor for himself and his heirs (30), as well as an action of debt will lie against the heir on a bond, wherein the ancestor has bound himself and his heirs". It is not necessary to allege in the declaration, that the heir has lands by descent (37). In an action on a breach of covenant in a lease for quiet enjoyment, the declaration, after stating that defendant's ancestors granted the lease in question, alleged, that the reversion vested in the defendant by assignment; defendant, by guardian, pleaded, that the reversion did not vest in him modo et forma: it appeared in evidence, that the estate descended to the defendant, an infant, as heir at law to the lessors: whereupon it was objected, that the reversion vested in the defendant by descent, and not by assignment; and that if the declaration had charged the defendant as heir, he might have prayed the parol to demur, in order that he might have an opportunity of electing whether he would take the estate subject to the incumbrance or not. But the court was of opinion, that if the defendant had intended to avail himself of his infancy, he ought to have pleaded it; that it was suf ficient to prove the substance of the issue, which was, that defendant was clothed with such a character as would make him liable to the covenant; and that was sufficiently proved n Dyke v. Sweeting, Willes, 585. o Derisley v. Custance, 4 T. R. 75. (36) See the form of declaration. Gifford v. Young, Lutw. 287. (37) It seems, however, that, in this case, as well as in debt on bond against the heir, if the heir has not any lauds by descent, he may insist on it by way of defence to the action. See the form of plea of riens per descent to an action of covenant against heir. Lutw. 290. H H by shewing that the estate was vested in him; for whether he was in possession as assignee or heir at law, he was equally liable to this covenant. 2. Against Executor.-Executors and administrators are bound by the covenants of their testator or intestate, although they be not named; unless the covenants are such, as in their nature determine by the death of the covenantor (38). Executors and administrators may be sued as assignees; for they are assignees in law of the interest of the term. Where covenant is brought against an executor'; although the breach assigned be for default of reparation committed in the time of the testator, yet the judgment must be de bonis testatoris; for it is the covenant of the testator which binds the executor as representing him, and therefore he must be sued by that name. Covenant by testator to teach an apprentice his trade is binding on the executors', and they ought to see that the apprentice is taught his trade; and if they are not of the same trade, they ought to assign him to another who is of the trade, so that he may be taught according to the covenant. 3. Against Assignee.-1. If the covenant extends to a thing in esse parcel of the demise, as a covenant to repair*; to reside constantly on the demised premises"; to leave part of the land demised every year for pasture, or the like, the thing to be done by force of the covenant, is in a manner annexed and appurtenant to the thing demised; it is parcel of the contract, and tends to the support of the thing demised; hence it shall bind the assignee, although he be not named; and the assignee by act in law, as tenant by elegit of a term, or he to whom a lease for years is sold by force of any execution, is equally bound with the assignee by act of the party'. 2. If the covenant relates to a thing not in esse at the time p Tilney v. Norris, E. 12 W. 3. B. R. q Per Fleming, C. J. 1 Bulstr. 23. t Dean and Chapter of Windsor's case, u Tatem v. Chaplin, 2 H. Bl. 133. (38) It was said by the court in Hyde v. Dean of Windsor, Cro. Eliz. 553. that covenant lies against an executor in every case, although he be not named, unless it be such a covenant, as is to be performed by the person of the testator, which the executor cannot perform. |