Worthington v. Cooke

Grason, J., delivered the opinion of the Court. This is an action brought in covenant by the appellant, against the appellee, her lessee. The sixth plea, which' goes to "the whole narr., alleges that prior to the alleged claims of the plaintiff, the defendant conveyed all her interest in the leasehold premises to one Emory G. Lee, in whose name the plaintiff thereafter rendered her-bills for rent, and that afterwards and before any of the supposed breaches of covenant by the defendant, the plaintiff and Emory G. Lee jointly conveyed part of the premises covered by the lease, to wit, ab&ut twenty acres thereof, to one Catharine S. Yeara in fee, in consideration of the sum of twenty-five hundred dollars paid to the plaintiff, by reason whereof the defendant was not liable for any of the supposed breaches of covenant, in manner ⁵³ and form as alleged. To this plea there was a demurrer, and judgment was rendered for the defendant on the demurrer, and from that judgment this appeal was taken.

It is claimed hy the appellant and not denied hy the appellee that a covenant to pay rent, which runs with the land, binds the lessee during the whole term, notwithstanding there has been an assignment of the term hy the lessee and an acceptance of the rent hy the lessor from the assignee. In view of the uniformity of the decisions upon this point, the proposition could not he well disputed. It was contended on the part of the appellee, that, in view of the facts in this case, the appellant cannot, in any event, recover the whole of the rent declared for, and this is conceded hy the appellant. But it is further contended by the appellee, that, in a case of this description, the rent is not apportionahle, and, consequently, that no part of the rent can be recovered.

This contention is based upon the case of Stevenson vs. Lambard, 2 East, 578, in which it is claimed that Lord Ellenborougii held that “ in covenant as between lessor and lessee, where the action is personal, and upon a mere privity of contract, and on