Mayhew v. Hardesty

Mason, J., delivered the opinion of this court. The principal questions raised upon this appeal are: — first, whether the appellee, Hardesty, as mortgagee of the term, notwithstanding he never took possession of the premises, is liable under the real covenants of the assignor? secondly, if he was, did not the sale and bond of conveyance to Mason, accompanied with possession, so far amount to a legal transfer of all his interest, as to make Mason, and not himself, liable under the covenants? and thirdly, if not liable as mortgagee out of possession, or if there has not been a complete transfer of all interest to Mason, so as to make him liable, will not the possession of Mason, under the peculiar circumstances of the case, be regarded as that of Hardesty, so as to make him mortgagee constructively in possession? In settling the first two questions, we need not look to the English authorities nor to those of our sister States, as we think the decisions of our own Court of Appeals have settled both. The third question, therefore, becomes unimportant.

By a close inspection of the case of Hintze vs. Thomas, 7 Md. Rep., 346, it j?ill be found that the principle is clearly recognised, that/ivhere a party takes an assignment of a lease, as in the present case, the whole legal estate passes, and he ⁴⁹⁵ thereby becomes liable on the real covenants, whether he became possessed, or occupied the premises, in fact, or not,,.,-' This is also now the law in England, notwithstanding the earlier decision of Eaton vs. Jacques, Doug., 455, to the contrary. Williams vs. Bosanquet, 1 Brod. & Bing., 230, 5 Eng. Com. Law: Rep., 72.

The same rule prevails at least in some of our sister States. Pingrey vs. Watkins, 15 Verm. Rep., 679. But it is contended by the appellee’s counsel, as his second ground of defence, that even if he had been liable, by mere force of the mortgage, to him, and without possession, such liability was divested by the sale and bond of conveyance of his interest to