Sarah Webb against Russell

3T.E.MS. WEBB V. RUSSELL 639 [393] sarah webb against russell. Wednesday, July 1st, 1789. If mortgagor and mortgagee make a lease, in which the covenants for the rent and repairs are only with the mortgagor and his assigns, the assignee of the mortgagee (*) cannot maintain an action for the breach of these covenants, because they are collateral to his grantor's interest in the land, and therefore do not run with it. If tenant for a term of years lease for a less term, and assign his reversion, and the assignee take a conveyance of the fee, by which his former reversionary interest is merged, the covenants incident to that reversionary interest are thereby extinguished. [Inapplicable, Baker v. Gostling, 1834, 1 Bing. N. C. 28. Referred to, Ecclesiastical Gom.misswm.ers v. Rowe, 1880, 5 App. Gas. 748. Considered, Rogers v. Hosegood [1900], 2 Ch. 400; Manchester Breivery Company v. Coombs [1901], 2 Ch. 614.] This was an action of covenant. The declaration stated an indenture of 26th October 1780, by which William Stokes, and R. Webb who was described to be the mortgagee of the premises in question, demised them to the defendant for 11 years, from the 29th September then last, at the yearly rent of 2001. payable to Stokes or his assigns; in which were contained covenants on the part of the defendant with Stokes and his assigns (inter alia) to pay the rent, and to keep the premises in repair. It then stated that R. Webb at the time of the lease was possessed of the premises for the residue then to come and unexpired of a term of 99 years, commencing on the 24th of June 1770, subject to an equity of redemption by Stokes on payment of a certain sum with interest to R. Webb. That the defendant entered on 26th October 1780, and became possessed for the term of 11 years, the reversion thereof for the terra of 99 years belonging to R. Webb, subject to such equity of redemption, and the further reversion in fee belonging to one G-. Medley. It then stated that by inden tures of lease and release of the 23d and 24th March 1781, Medley granted the rever sion in fee, expectant on the determination of the term for 99 years, to Stokes and Morgan Thomas; who, by indentures of lease and release, dated 26th and 27th March 1781, and made between Stokes and Thomas of the first part, R. Webb of the second part, and Makepeace Thackeray of the third part, granted it to Thackeray his heirs and assigns in trust for R. Webb his heirs and assigns, subject to a proviso for redemp tion on payment of a certain sum of interest by Stokes to R. Webb on a day therein mentioned and since past. That on the 30th May 1785 R. Webb died, having first made his will; by which he bequeathed to the plaintiff all his worldly estate, and appointed her sole executrix; that she proved the will, took upon herself the burthen of the execution of it, assented to the said bequest, and claimed to have the reversion of the premises for the residue of the term of 99 years, (subject to Stokes's equity of redemption,) and the money thereupon secured to R. Webb, as legatee; and by virtue of that bequest, assent, and claim, she became possessed of the said reversion for the residue of the term of 99 years, subject, &c. That by indentures of lease and release, dated 12th and 13th February 1787, and made between Thackeray of the first part, Stokes of the second part, and the plaintiff of the third part. Thackeray and Stokes granted and released to the plaintiff the reversion of the premises in fee, freed and dis-[394]-charged from all right and equity of redemption whatsoever; by virtue whereof she became and was and still is seized in fee of the reversion of the premises, immediately expectant on the determination of the term of 11 years. The declaration coneluded with setting forth two breaches of covenant; the one for non-payment of one year and one quarter's rent, due at Lady-Day 1788 ; and the other for uot keeping the premises in repair. To this there was a general demurrer; and joinder. Shepherd (a) in support of the demurrer. It appears by the pleadings that the reversion in the term for 99 years, and the reversion in fee, are united in the plaintiff in her own right. For though she was the executrix as well as legatee of her husband, she took the reversion in the term for 99 years in the latter character, it being expressly stated that she assented to the bequest, and by virtue of such bequest became possessed, &c. Then if she took it in her own right, the general rule of law (*) Bui (a) In (*) But the mortgagor himself may. Stokes v. Russell, post, 678. " " " i last Michaelmas term. 640 WEBB V. RUSSELL 3 T. R. S95. attaches on this case, namely, that where a term and a reversion expectant on that term unite in one person by a different creation in the same right, the term is merged in and extinguished by the reversion (b); and then all the covenants, which were created in respect of the term, are merged and destroyed. So that where the assignee of the reversion is not seised or possessed of the same estate, in respect of which the covenant is made, he cannot take advantage of the covenant. There are three relations at common law, which may exist between the lessor and the lessee, and their respective assignees. First, privity of contract, which is created by the contract itself, and subsists for ever between the lessor and lessee. Secondly, privity of estate, which subsists between the lessee, or his assignee in possession of the estate, and the assignee of the reversioner. And thirdly, privity of contract and estate, which both exist where the term and reversion remain in the original covenantors. The statute 32 H. 8, c. 34, seems to have created a fourth relation, a privity of contract in respect of the estate, as between the assignees of the reversion and the lessees or their assignees. The statute annexes, or rather creates, a privity of contract between those who have privity of estate ; and when the one fails, the other fails with it. At common law the covenant did not pass by an assignment of the reversion, for it was a mere personal contract. It is true indeed that some dicta are to be found which contradict this and assert that the assignee of the reversion could maintain an action of covenant at common law : but the better, and particularly the [395] later, opinions are the other way.1 Saund. 238. 3 Mod. 336, and 1 Wils. 165, Thrale v. Cornwall. This is also confirmed by the recital in the Statute 32 H. 8. And in 2 Hen. 4, 6 b. it is said that none shall have an action of covenant but the covenantee and those who are privy in blood, as his heirs; and not the alienee, or other person who is only privy in estate. But the statute 32 Hen. 8, c, 3-t, gave an action of covenant to the assignee of the reversion. The present action therefore would not have lain at common law; and if it can be maintained at all, it must be by force of the Stat. 32 H. 8. But that statute does not extend to all covenants, but to such only as run with the land, or rather that run with the estate in the land. In Spencer's case (a) it was held that the statute 32 H. 8, c. 34, extends only to covenants that run with the land, and not to collateral covenants. That statute does not continue the contract as between the lessor and lessee; it only continues the contract as annexed to the estate. The law then respects the estate, and continues the contract to the assignee of the reversion : but here the reversion is gone by the merger. The same estate should exist at the time when the covenant is broken that existed at its creation. But here the same estate does not exist; for the plaintiff is no longer assignee of the reversion. The cases that decide that an action of covenant may be brought in any county only prove that, whilst the privity of contract subsists in respect of the estate, the same rules shall attach upon it as when subsisting between the lessor and lessee. It appears from Moor, 94, 876, and Co. Lit. 215 b. that a person who is in by title paramount shall not have the benefit of the conditions. Those indeed are the cases of conditions : but the statute equally relates to conditions and covenants ; they are both continued in respect of the reversion. The statute says that the grantees of the reversion shall have the like remedy that their grantors had. Now at the time when this covenant was broken the plaintiff was the assignee of Thackeray who was a reversioner in fee expectant on the determination of the estate for 99 years; the covenant was made with the reversioner for 99 years ; so that when the covenant was broken, the plaintiff was not seised of the estate in respect of which the covenant was made. There is also another ground of objection in this case; this covenant was made with a stranger to the estate, and therefore cannot run with the land. All the covenants in the lease for 11 years [396] were made with Stokes and his assigns; not with R. Webb, who was at that time the reversioner for 99 years : and...