Where a lease was made by several owners of a house, reserving
rent to each one in proportion to his interest, and there was a
covenant on the part of the lessee that he would keep the premises
in good repair and surrender them in like repair, this covenant was
joint as respects the lessors, and one of them or two representing
one interest cannot maintain an action for the breach of it by the
lessee.
The question examined whether a mortgagee of a leasehold
interest, remaining out of possession, is liable upon the covenants
of the lease. The English and American cases reviewed and compared
with the decisions of this Court upon kindred points. But the court
abstains from an express decision, which is rendered unnecessary by
the application of the principle first above mentioned to the case
in hand.
This was an action of covenant brought by the Calverts against
Bradley and Middleton, who were the assignees of the unexpired term
and property in the house for the purpose of paying the
Page 57 U. S. 581
creditors of the lessee. The lease was of the property called
the national Hotel, in Washington, owned as follows:
Shares
George H. Calvert and Charles B. Calvert, jointly . . . 205
Roger C. Weightman. . . . . . . . . . . . . . . . . . . 66
Philip Otterback. . . . . . . . . . . . . . . . . . . . 22
William A. Bradley. . . . . . . . . . . . . . . . . . . 20
Robert Wallach, represented by his guardian, Alexander
Hunter. . . . . . . . . . . . . . . . . . . . . . . . 2
---
Total shares . . . . . . . . . . . . . . . . . . . 315
All of the above named persons signed the lease.
The history of the case and the manner in which it came up are
set forth in the opinion of the Court.
Page 57 U. S. 590
MR. JUSTICE DANIEL delivered the opinion of the Court.
The plaintiffs brought their action of covenant, in the court
above mentioned, against the defendants, to recover of them in
damages the value of repairs made by the plaintiffs upon certain
property in the City of Washington, known as the National Hotel,
which had been on the 17th of April, 1844, leased by the
plaintiffs, together with Roger C. Weightman, Philip Otterback,
William A. Bradley, and Robert Wallach, to Samuel S. Coleman, for
the term of five years. This property was owned by the lessors in
shares varying in number as to the several owners, and by the
covenant in the deed of demise, the rent was reserved and made
payable to the owners severally in proportion to their respective
interests, the interests of the plaintiffs only in the shares owned
by them being joint. In addition to the covenant on the part of the
lessee for payment to each of the lessors of his separate
proportion of the rent, there is a covenant by the lessee for the
payment of the taxes and assessments which might become due upon
the premises during the term, and a further covenant that he would,
during the same time,
"keep the said hotel with the messuages and appurtenances in
like good order and condition as when he received the same, and
would, at the expiration of the said term, surrender them in like
good repair."
On the 1st of January, 1847, the lessee, Coleman assigned
Page 57 U. S. 591
all his interest in the lease to Cornelius W. Blackwell, who
entered and took possession of the premises. On the 17th of
February, 1848, Blackwell, by deed poll, conveyed to the
defendants, Bradley and Middleton, all the goods, chattels,
household stuffs, and furniture then upon the premises, together
with the good will of the said hotel and business, and the rest and
residue of the unexpired term and lease of said Blackwell in the
premises upon trust to permit the said Blackwell to remain in
possession and enjoyment of the property until he should fail to
pay and satisfy certain notes and responsibilities specified in the
instrument; but upon the failure of Blackwell to pay and satisfy
those notes and responsibilities, the trustees were to take
possession of the property conveyed to them, and to make sale
thereof at public auction for the purposes in the deed specified.
Blackwell remained in possession after the execution of the deed to
the defendants, until the 6th of March, 1849, when he absconded,
leaving a portion of the rent of the premises in arrear. The
property having been thus abandoned by the tenant, an agreement was
entered into between the owners of the property and the defendants,
that a distress should not be levied for the rent in arrear, but
that the defendants should sell the effects of Blackwell left upon
the premises, and from the proceeds thereof should pay the rent up
to the 1st day of May, 1849 -- the defendants refusing to claim or
accept any title to, or interest in, the unexpired portion of the
lease, or to take possession of the demised premises. In this state
of things the plaintiffs, being the largest shareholders in those
premises, proceeded to take possession of and to occupy them, and
to put upon them such repairs as by them were deemed necessary, and
have continued to hold and occupy them up to the institution of
this suit. The action was brought by the plaintiffs alone, and in
their own names, to recover their proportion of the damages alleged
by them to have been incurred by the breach of the covenant for
repairs contained in the lease to Coleman, which was assigned to
Blackwell, and by the latter to the defendants by the deed poll of
February 17, 1848.
To the declaration of the plaintiffs the defendants pleaded four
separate pleas. To the 3d and 4th of these pleas the defendants
demurred, and as it was upon the questions of law raised by the
demurrer to these pleas, that the judgment of the court was given,
we deem it unnecessary to take notice of those on which issues of
fact were taken. The 3d and 4th pleas present substantially the
averments that the deed from Blackwell to the defendants was simply
and properly a deed of trust made for the security of certain debts
and liabilities of Blackwell, therein enumerated; and giving power
to the defendants in the
Page 57 U. S. 592
event of the failure on the part of Blackwell to pay and satisfy
those responsibilities, to take possession of the subjects of the
trust and dispose of them for the purposes of the deed. That this
deed was not in law a full assignment of the term of Blackwell in
the demised premises, and never was accepted as such, but on the
contrary was always refused by the defendants as such; and that the
plaintiffs, by their own acts, would have rendered an acceptance
and occupation by the defendants, as assignees of the term,
impracticable, if such had been their wish and intention, inasmuch
as the plaintiffs themselves had, upon the absconding of Blackwell,
the assignee of Coleman, entered upon and occupied the demised
premises, and held and occupied the same up to the institution of
this action, and had, during that occupancy, and of their own will,
made such repairs upon the premises as to the plaintiffs has seemed
proper or convenient.
Upon the pleadings in this cause two questions are presented for
consideration, and comprising, as they do, the entire law of the
case, its decision depends necessarily upon the answer to be given
to those questions.
The first is whether the plaintiffs in error, as parties to the
deed of covenant on which they have declared, can maintain their
action without joining with them as co-plaintiffs the other
covenantees?
The second is whether the defendants in error, in virtue of the
legal effect and operation of the deed to them from Blackwell, the
assignee of Coleman, and without having entered upon the premises
in that deed mentioned, except in the mode and for the purposes in
the 3d and 4th pleas of the defendants set forth, and admitted by
the demurrer, were bound for the fulfillment of all the covenants
in the lease to Coleman, as regular assignees would have been?
The affirmative of both these questions is insisted upon by the
plaintiffs.
The converse as to both is asserted by the defendants, who
contend as to the first, that the covenants for repairs declared on
and of which profert is made, is essentially a joint contract, by
and with all the covenantees, and could not be sued upon by them
severally; and that the demurrer to the 3d and 4th pleas, reaching
back to and affecting the first vice in the pleadings, shows upon
the face of the declaration, and of the instrument set out
in
haec verba, a restriction upon the plaintiffs to a joint
interest, or a joint cause of action only with all their associates
in the lease.
2. That the deed from Blackwell to the defendants, being a
conveyance of a leasehold interest in the nature of a trust for the
security of a debt, by the terms of which conveyance the
Page 57 U. S. 593
grantor was to remain in possession till default of payment, and
the grantees not having entered into possession of the demised
premises, which were entered upon and held by the plaintiffs
themselves, the defendants could not be bound, under the covenant
for repairs, to the premises never in their possession, and over
which they exercised no control.
The second of the questions above mentioned, as presented by the
pleadings, will be first adverted to. This question involves the
much controverted and variously decided doctrine as to the
responsibility of the mortgagee of leasehold property, pledged as
security for a debt, but of which the mortgagee has never had
possession, for the performance of all the covenants to the
fulfillment whereof a regular assignee of the lease would be
bound.
With regard to the law of England as now settled, there seems to
be no room for doubt that the assignee of a term although by way of
mortgage or as a security for the payment of money, would be liable
under all the covenants of the original lessee. In the case of
Eaton v. Jacques, reported in the 2d vol. of Douglas 456,
this subject was treated by Lord Mansfield with his characteristic
clearness and force, and with the strong support of Justices
Willes, Ashurst, and Buller, he decided that the assignee of a
lease by way of mortgage or as a mere security for money, and who
had not possession, is not bound for or by the covenants of the
lessee. The language of his lordship in this case is exceedingly
clear. "In leases," said he,
"the lessee, being a party to the original contract, continues
always liable notwithstanding any assignment; the assignee is only
liable in respect of his possession of the thing. He bears the
burden while he enjoys the benefit, and no longer, and if the whole
is not passed, if a day only is reserved, he is not liable. To do
justice, it is necessary to understand things as they really are
and construe instruments according to the intent of the parties.
What is the effect of this instrument between the parties? The
lessor is a stranger to it. He shall not be injured, but he is not
entitled to any benefit under it. Can we shut our eyes and say it
is an absolute conveyance? It was a mere security, and it was not,
nor ever is meant that possession shall be taken until the default
of payment and the money has been demanded. The legal forfeiture
has only accrued six months, and if the mortgagee had wanted
possession, he could not have entered
via facti. He must
have brought an ejectment. This was the understanding of the
parties, and is not contrary to any rule of law."
The same doctrine was sanctioned in the case of
Walker v.
Reeves, to be found in a note in Douglas vol. 2, 461. But by
the more recent case of
Williams v. Bosanquet, it has been
decided that when a
Page 57 U. S. 594
party takes an assignment of a lease by way of mortgage as a
security for money lent, the whole interest passes to him and he
becomes liable on the covenant for the payment of the rent, though
he never occupied or became possessed in fact. This decision of
Williams v. Bosanquet is founded on the interpretation put
upon the language of Littleton in the fifty-ninth and sixty-sixth
sections of the treatise on Tenures, in the former of which that
writer remarks
"that it is to be understood that in a lease for years by deed
or without deed, there needs no livery of seizin to be made to the
lessee, but he may enter when he will, by force of the same
lease,"
and in the latter,
"also if a man letteth land to another for term of years, albeit
the lessor dieth before the lessee entereth into the tenements, yet
he may enter into the same after the death of the lessor, because
the lessee by force of the lease hath right presently to have the
tenements according to the force of the lease."
And the reason, says Lord Coke in his commentary upon these
sections is
"because the interest of the term doth pass and rest in the
lessee before entry, and therefore the death of the lessor cannot
divest that which was vested before."
True it is, he says, "that to many purposes he is not tenant for
years until he enter, as a release to him is not good to increase
his estate before entry." Co.Litt. 46
b. Again, it is said
by this commentator that
"a release which enures by way of enlarging an estate cannot
work without possession; but by this is not to be understood that
the lessee hath but a naked right, for then he could not grant it
over; but seeing he hath
enteresse termini before entry,
he may grant it over, albeit for want of actual possession he is
not capable of a release to enlarge his estate."
Whatever these positions and the qualifications accompanying
them may by different minds be thought to import, it is manifest,
from the reasoning and the references of the court in the case of
Williams v. Bosanquet, that from them have been deduced
the doctrine ruled in that case, and which must be regarded as the
settled law of the English courts, with respect to the liabilities
of assignees of leasehold estates. But clearly as this doctrine may
have been established in England, it is very far from having
received the uniform sanction of the several courts of this
country, nor are we aware that it has been announced as the settled
law by this Court. Professor Greenleaf, in his edition of Cruise,
Title 15, Mortgage, ยง 15, 16, 111, inclines very decidedly to the
doctrine in
Eaton v. Jacques. After citing the cases of
Jackson v. Willard, 4 Johns. 41; of
White v.
Bond, 16 Mass. 400;
Waters v. Stewart, 1 Caines Cases
47;
Cushing v. Hurd, 4 Pick. 253, ruling the doctrine that
a mortgagee out of possession has no interest which can be sold
under execution, but that the equity of
Page 57 U. S. 595
redemption remaining in the mortgagor is real estate, which may
be extended or sold for his debts, and farther that the mortgagee
derives no profit from the land until actual entry or other
exertion of exclusive ownership, previous to which the mortgagor
takes the rents and profts without liability to account, Mr.
Greenleaf comes to the following conclusion, namely,
"On these grounds, it has been held here as the better opinion
that the mortgagee of a term of years, who has not taken
possession, has not all the legal right, title, and interest of the
mortgagor, and therefore is not to be treated as a complete
assignee so as to be chargeable on the real covenants of the
assignor."
In the case of
Astor v. Hoyt, reported in the 5th of
Wendell 603, decided after the case of
Williams v.
Bosanquet, and in which the latter case was considered and
commented upon, the supreme court of New York, upon the principle
that the mortgagor is the owner of the property mortgaged against
all the world, subject only to the lien of the mortgagee, declare
the law to be
"that a mortgagee of a term not in possession cannot be
considered as an assignee, but if he takes possession of the
mortgaged premises he has the estate
cum onere."
In the case of
Walton v. Cronly's Administrator in the
14th of Wendell 63, upon the same interpretation of the rights of
the mortgagor which was given in the former case, it was ruled that
a mortgagee who has not taken possession of the demised premises is
not liable for rent, and that the law in this respect is in New
York different from what it is in England. It is contended on
behalf of the plaintiff in error that the doctrine in
Eaton v.
Jacques, and in the several decisions from the state courts in
conformity therewith, is inconsistent with that laid down by this
Court in the cases of
Stelle v.
Carroll, 12 Pet. 201, and of
Van Ness
v. Hyatt, 13 Pet. 294. With regard to this position
it may be remarked that the questions brought directly to the view
of the Court and regularly and necessarily passed upon in these
cases did not relate to the rights and responsibilities of the
assignee of a term or to what it was requisite should be done for
the completion of the one or the other. Giving every just latitude
to these decisions, all that can be said to have been ruled by the
former is that by the common law a wife is not dowable of an equity
of redemption, and by the latter, that an equitable interest cannot
be levied upon by an execution at law. This Court therefore cannot
properly be understood as having, in the cases of
Stelle v.
Carroll and
Van Ness v. Hyatt, established any
principle which is conclusive upon the grounds of defense set up by
the third and fourth pleas of the defendants. Nor do we feel called
upon in the present case to settle that principle, for let it be
supposed that such a principle has
Page 57 U. S. 596
been most explicitly ruled by this Court, still that supposition
leaves open the inquiry how far the establishment of such a
principle can avail the plaintiffs in the relation in which they
stand to the other covenantees in the deed from Coleman. In other
words, whether the covenant for repairs contained in that deed was
not essentially a joint covenant -- one in which the interest was
joint as to all the grantees and with respect to which therefore no
one of them or other portion less than the whole could maintain an
action?
The doctrines upon the subjects of joint and several interests
under a deed, and of the necessity or propriety for conformity with
remedies for enforcing those interests to the nature of the
interests themselves, have been maintained by a course of decision
as unbroken and perspicuous, perhaps, as those upon which any other
rule or principle can be shown to rest. They will be found to be
the doctrines of reason and common sense.
Beginning with
Windham's Case, 3d Reports part 5th, 6a,
6b, it is said that joint words will be taken respectively and
severally, 1st., with respect to the several interests of the
grantors; 2d, in respect of the several interests of the grantees;
3d, in respect to that the grant cannot take effect but at several
times; 4th, in respect to the incapacity and impossibility of the
grantees to take jointly; 5th, in respect of the cause of the grant
or
ratione subjectae materiae. The next case which we will
notice is
Slingsby's Case, in the same volume, 18a, 18b,
decided in the Exchequer. In this case it was ruled that a covenant
with several
et cum qualibet and
qualibet eorum
is a several covenant only where there are several interests. Where
the interest is joint, the words
cum qualibet et qualibet
eorum are void, and the covenant is joint. In the case of
Eccleston v. Clipsham, the law is stated that although a
covenant be joint and several in the terms of it, yet if the
interest and cause of action be joint, the action must be brought
by all the covenantees. And on the other hand, if the interest and
cause of action be several, the action may be brought by one only.
1 Saunders 153. The learned annotator upon Sir Edmund Saunders in
his note to the case of
Eccleston v. Clipsham has
collected a number of cases to this point and others which go to
show that where there are several joint covenantees, and one of
them shall sue alone without averring that the others are dead, the
defendant may take advantage of the variance at the trial, and that
the principle applicable to such a case is different from that
which prevails where the action is brought against one of several
joint covenantors or obligors who can avail themselves of the
irregularity by plea in abatement only. The same rule with regard
to the construction of covenants and to the legal rights and
Page 57 U. S. 597
position of the parties thereto in courts of law may be seen in
the cases of
Anderson v. Martindale, 1 East 497;
Withers v. Bircham, 3 Barn. & Cress. 255;
James v.
Emery, 5 Price 533.
It remains now to be ascertained how far the parties to the case
before us come within the influence of principles so clearly
defined, and so uniformly maintained in the construction of
covenants and in settling the legal consequences flowing from that
interpretation. The instrument on which the plaintiffs instituted
their suit was a lease from the plaintiffs and various other
persons interested in different proportions in the property
demised, and by the terms of which lease rent was reserved and made
payable to the several owners of the premises in the proportion of
their respective interests. So far as the reservation and payment
of rent to the covenantees, according to their several interests,
made a part of the lease, the contract was several, and each of the
covenantees could sue separately for his portion of the rent
expressly reserved to him. But in this same lease there is a
covenant between the proprietors and the lessee, that the latter
shall keep the premises in good and tenantable repair, and shall
return the same to those proprietors in the like condition, and it
is upon this covenant or for the breach thereof that the action of
the plaintiffs has been brought. Is this a joint or several
covenant? It has been contended that it is not joint, because its
stipulations are with the several covenantees jointly and
severally. But the answer to this position is this: are not all the
covenantees interested in the preservation of the property demised,
and is anyone or a greater portion of them exclusively and
separately interested in its preservation? And would not the
dilapidation or destruction of that property inevitably affect and
impair the interests of all, however it might and necessarily would
so affect them in unequal amounts?
It would seem difficult to imagine a condition of parties from
which an instance of joint interests could stand out in more
prominent relief. This conclusion, so obvious upon the authority of
reason, is sustained by express adjudications upon covenants
essentially the same with that on which the plaintiffs in this case
have sued.
The case of
Foley v. Addenbrooke, 4 Adolph & Ell.
197. The declaration in covenant stated that Foley and Whitby had
demised to Addenbrooke lands and iron mines of one undivided
moiety, of which Foley was seised in fee, Addenbrooke covenanting
with Foley and Whitby and their heirs to erect and work furnaces
and to repair the premises and work the mines; that Foley was dead,
and plaintiff, Foley's heir, and breaches were assigned as
committed since the death of Foley; that
Page 57 U. S. 598
Addenbrooke, and since his death his executors, had not worked
the mines effectually, nor repaired the premises, nor left them in
repair. To this declaration it was pleaded that Whitby, one of the
tenants in common and one of the covenantees, who was not joined in
the action, still survived. This plea was sustained upon special
demurrer, and Lord Denman, in delivering the opinion of the court,
said:
"In the present case, the covenants for breach of which the
action is brought are such as to give to the covenantees a joint
interest in the performance of them, and the terms of the indenture
are such that it seems clear that the covenantees might have
maintained a joint action for the breach of any of them. Upon this
point the case of
Kitchen v. Buckley, 1 Lev. 109, is a
clear authority, and the case of
Petrie v. Bury, 3 Barn.
& Cress. 353, shows that if the covenantees could sue jointly,
they are bound to do so."
The case of
Bradburne v. Botfield, in the Exchequer,
reported in the 14th of Meeson & Welsby, was an action of
covenant upon a lease by seven different lessors jointly, according
to their several rights and interests in certain coal mines, to the
defendant, yielding and paying certain rents to the lessors
respectively, and to their respective heirs and assigns, according
to their several and respective estates, rights, and interests in
the premises, and the defendant covenanted with all the above
parties and with each and every of them, their and each and every
of their heirs, executors, administrators, and assigns to repair
the premises and to surrender them in good repair to the lessors,
their heirs and assigns respectively at the end of the term. The
declaration then deduced to the plaintiff a title to the moiety of
one of the lessors, and alleged as breaches the nonrepair of the
premises and the improper working of the mines. To this declaration
it was pleaded that one of the original lessors, who had survived
all the other covenantees, was still living. It was held upon
demurrer that the covenants for repairs and for working the mines
were in their nature joint and not several, and that the surviving
covenantee ought to have brought the action. Baron Parke, who
delivered the opinion of the court, thus speaks:
"We have looked since the argument into the lease now set out on
oyer, and into all the authorities cited for the plaintiff, and are
still of opinion that he cannot recover upon the covenants stated
in the declaration. It is impossible to strike out the name of any
covenantee, and all the covenantees must therefore necessarily sue
upon some covenant, and there appear to us to be no covenants in
the lease which are of a joint nature, if those declared upon are
not, or which would be in gross, if the persons entitled to the
legal estate had alone demised, for all relate to and affect the
quality of the subject of the demise or to the mode of enjoying of
it. "
Page 57 U. S. 599
We regard the cases just cited as directly in point and as
conclusive against the claim of the plaintiffs to maintain an
action upon the covenant for repairs in the lease to Coleman, apart
from and independently of the other covenantees in that lease
jointly and inseparably interested in that covenant with the
plaintiffs. We therefore approve the judgment of the circuit court
that the plaintiffs take nothing by their writ and declaration, but
that the defendants recover against them their costs about their
defense sustained, as by the said court was adjudged, and we order
the said judgment of the circuit court to be
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington, and was argued
by counsel. On consideration whereof it is now here ordered and
adjudged by this Court that the judgment of the said circuit court
in this cause be and the same is hereby affirmed with costs.