Donelson v. Polk

Alvey, C. J., delivered the opinion of the Court. The bill in this case was filed against the appellant to compel him to account for and pay over to the appellee as lessor, certain arrearages of ground-rent, which accrued due while the former was owner and possessor of the leasehold estate, as assignee thereof, and which leasehold premises he afterwards assigned; and also to compel him to reimburse the appellee the amount of taxes that accrued due during the time of the holding of the premises by the appellant as such assignee, — such taxes having been subsequently paid by the appellee. There is no dispute in regard to the amount claimed, and for which the decree below was rendered; and all the material facts of the case have been ascertained by agree ⁵⁰⁴ ment, and which, facts it is unnecessary to repeat here. It may, however, be proper to state, that the lease of the premises by the appellee to Kennedy, the original lessee, is for ninety-nine years, and is dated the 22d of July, 1868; and that the annual rent reserved is $860, payable in equal half-yearly instalments, with covenant on the part of the lessee .to pay all taxes that might be thereafter levied either on the premises demised or the rent reserved.

The appellant resists recovery against him in this case upon two grounds: 1st. That a Court of equity has no jurisdiction to decree against him in respect to the claim made ; and, 2d. That the appellee is estopped from asserting her claim against him. 1. The principle of law is a familiar one, that the liability of an assignee of a term to the original lessor, or those claiming under him, grows out of the privity of estate, and that such liability continues only so long as such privity of estate exists.

So long as the privity of estate continues, the assignee is liable upon all covenants that run with the land, such as covenants for the payment of rent, and of taxes assessed upon the premises (Lester vs. Hardesty, 29 Md., 50 ); and for any breach of such covenants, the lessor may sue him during the continuance of the assignment. But as his liability springs altogether from his relation to the land, it follows that when he severs that relation he puts an end to his liability for any future breaches of the covenant contained in the lease, whether such covenants be expressed or implied. In regard to this there is no question or conflict of authority. But though the liability of'the assignee for future breaches is terminated upon assignment by him, the question whether the remedy, after the assignment, in respect to breaches of covenant committed by the assignee during the time of his holding, can be had by action at law, or can only be sought in equity, is one in regard to which ⁵⁰⁵ there is conflict of authority.

In England, it has been held that the assignee is liable in an action at law for breach of covenant running with the land, incurred in his own time, though the action was not commenced until after he had assigned the premises. Harley vs. King, 2 Cr. M. & R., 18. And the same principle has been fully sanctioned by the Supreme Court of New York, in Quackenboss vs. Clark, 12 Wend., 557 .

But in this State it has been settled by our predecessors, that such action at law, if not brought before the assignee divests himself of the estate, cannot be maintained against him. This was held in the case of Hintze vs. Thomas, 7 Md., 346 , which was an action of covenant brought against the assignee of a lease after he had assigned over, for rent falling due subsequent to the assignment to him, and before the assignment over ; and consequently the direct question of the right to maintain the action at