Hintze v. Thomas

Eccleston, J., delivered the opinion of this court. This is an action of covenant for rent alleged to be due under a lease from Margaret Moore to Peter R. Blumb, for ninety-nine years, bearing date the 7th of May 1836, which lease was assigned to H. Peters, on the 18th of February 1837, by Mrs. Moore. When she executed this lease her only title to the premises was as lessee under a lease for ninety-nine years, commencing on the 2nd of November, 1792. The rent in controversy fell due after the assignment by Mrs. Moore to Peters.

This claim has been resisted upon the ground that as the lease or conveyance from Mrs. Moore to Blumb, professed to convey a larger estate in the premises than she was actually entitled to, no reversion was left in her, and therefore none was transferred by the assignment which she made to Peters, who, for want of a reversion in him, could not maintain this action, if living, and of course his representative cannot. ³⁵⁰ It is unnecessary (o decide whether the appellant’s views on this point are correct or not, because another objection to the present right of action must settle the case adversely to the plaintiff. The claim is against Hintze, as assignee of Blumb, for vent falling due after the assignment to Hintze, and before he assigned to McElderry. It is contended, that as the suit was instituted after the assignment by Hintze, it cannot be maintained. The remedy, if any, is not at law, but in equity.

This subject has been examined with much care and ability in Platt on Cov., from page 495 to 503, in 4 Law Lib., and his argument is designed to establish the position assumed in the present defence. He commences the argument by stating that the privity of estate, which exists between (he lessor and the assignee, during the occupancy of the latter, is the principle which gives to the former the remedy by covenant; and that by getting rid of the estate, the assignee determines the privity as far as regards himself, and transfers it to the new assignee. From this he draws the inference, that if the privity, on which alone the liability is based, is destroyed, the dependent liability of the assignee must cease. The defeasance of the principal, he thinks, will operate as a defeasance of the accessary.

This writer also thinks, that in addition to the argument resting upon the principle on which is founded the right to maintain covenant against the assignee, the authorities are consistent with his view of the subject. He then makes reference to the rule that equity will seldom grant relief where means of redress can be had at law; from which it is assumed that if suits in equity, insiituted for the purpose of compelling an assignee, after he has made an assignment, to pay rent accruing during his possession, have frequently been sustained, it may be fairly inferred that the court of chancery sanctioned such proceedings because there was no remedy at