1876 บ. that when the defendant signed a document framed as this is, setSOUTHWELL ting out at full length every particular of the contract entered into, as this does, and in all respects like a contract, he could not have considered that he was signing not a contract but only a mere note, or piece of useful information to the plaintiffs. BOWDITCH. For these reasons, I agree with the rest of the Court that this rule should be discharged. Rule discharged. Solicitors for plaintiffs: Venning, Robins, & Venning. 1875 Nov. 25. SCALTOCK v. HARSTON. Landlord and Tenant-Ejectment for a Forfeiture-Assignee of Reversion- The assignee of the reversion of a lease may maintain ejectment for breach of a covenant to repair, without giving the tenant notice of the assignment. EJECTMENT to recover the possession of houses in Southampton Street, Camberwell, held under two leases, dated respectively the 25th of September, 1822, and the 25th of March, 1851, containing the usual covenant to repair, with a power to the lessor, his heirs and assigns, to re-enter in case of breach by the lessee or his assigns. The plaintiff sued as assignee of the reversion, in respect of a breach of the covenant to repair. The cause was tried before Pigott, B., at the sittings in Middlesex after Michaelmas Term, 1874. It was proved that the plaintiff had become possessed of the reversion, and that a breach of the covenant to repair had been committed after the assignment to him. The defence set up was, that the defendant had had no notice of the assignment to the plaintiff, the rent having always been paid to his predecessor in title, Thomas Flight. A verdict was entered for the plaintiff, with leave to the defendant to move to set it aside, and enter it for him, if the Court should be of opinion that the action could not be maintained in the absence of notice to the tenant that the plaintiff had become assignee of the reversion. 1875 V. HARSTON. G. R. Kennedy, in Hilary Term, 1875, obtained a rule nisi. Nov. 24. Wilberforce shewed cause. No notice of the assign- SCALTOCK ment was necessary to enable the plaintiff to maintain this action. By 32 Hen. 8, c. 34, the assignee of the reversion is placed in the same position with regard to the covenants of the lease as the original lessor: Fraunces's Case. (1) The opinion there cited of Popham, J., and Mallory's Case (2), which will be cited for the defendant, had reference to the breach of a covenant for payment of rent, which differs in the nature of things from a covenant to repair. Until he has notice of an assignment, the lessee cannot know that he has to pay rent to the assignee. But he is bound to perform his covenant to repair, whoever may be owner of the reversion; and therefore an action for breach of the covenant to repair will lie at the suit of the assignee of the reversion, without notice of the assignment: Hingen v. Payn. (3) The opinions of Coke, C.J., and Foster, J., in Bristow and Bristowe's Case (4), support this view. Kennedy, in support of the rule, contended that notice of the assignment was necessary before the assignee could maintain ejectment for breach of any of the covenants in the lease. He cited Comyns's Digest, Condition (0.2); Co. Litt. 215. a., 215. b.; Pope v. Biggs (5); Gibson v. Doeg (6); Doe d. Palk v. Marchetti. (7) Cur. adv. vult. Nov. 25. GROVE, J. In this case, which was argued yesterday before my Brothers Archibald and Lindley and myself, we took time to look into the authorities. It was an action of ejectment by the assignee of the reversion against a sub-lessee founded upon a right of re-entry for the breach of a covenant to repair; the lease containing a covenant by the lessee and his assigns to repair and sustain the demised premises, and a proviso for re-entry for a breach of any of the covenants in the lease. It was assumed at the trial before my Brother Pigott at the sittings in Middlesex after Michaelmas Term, 1874, that the premises were out of repair, (1) 8 Co. Rep. 92. a. (4) Godb. 161. 37. (5) 9 B. & C. 245. (6) 2 H. & N. 615; 27 L. J. (Ex.) (7) 1 B. & Ad. 720. 1875 SCALTOCK V. HARSTON, and therefore that the defendant had been guilty of a breach of the covenant. The only point argued before us in support of the motion for a new trial was, that the sub-lessee had received no notice that the plaintiff had become assignee of the reversion before the issuing of the writ: and it was insisted that the action was not maintainable in the absence of such notice. There is no express decision upon the subject: but two cases were relied on for the defendant, viz. Mallory's Case (1) and Fraunces's Case (2), where it was held that in order to take advantage of a forfeiture for non-payment of rent, notice of assignment is necessary. Prior to 32 Hen. 8, c. 34, which enabled the grantees or assignees to have the like advantage as the lessors or grantors themselves might have had, the tenant could not become tenant of the assignee without attornment; and Mallory's Case (1) is an authority that to be an assignee within the meaning of that statute, the assignee ought to have all that was requisite at common law, viz. attornment. But, after that statute, an assignee of the reversion, with attornment by the tenant, had the same rights as the grantor himself had before that statute. By the statute 4 Anne, c. 16, s. 9, the necessity for attornment is taken away, with this proviso in s. 10, that “no such tenant shall be prejudiced or damnified by payment of any rent to any such grantor or conusor by breach of any condition for non-payment of rent, before notice shall be given to him of such grant by the conusee or grantee." But that proviso is expressly limited to the case of an entry for breach of a condition by nonpayment of rent; and in that case it protects the tenant where in ignorance or mistake he has paid his rent to the grantor before he has had notice of the assignment. The reason for this is obvious. The tenant, unless he has notice of the assignment, does not know to whom he is to tender the rent; and it would be monstrous that his lease should be forfeited when he has no means of knowing to whom the reversion has been assigned. But that, as I said before, is expressly limited to non-payment of rent. There is no case where it has been held necessary to give notice in the case of a forfeiture for breach of the covenant to repair. Nor is it easy to see what benefit such a notice would be to the tenant, unless the notice was (2) 8 Co. Rep. 93. a. (1) 5 Co. Rep. 113. b. v. HARSTON. long enough to give him time to put the premises in repair. That 1875 is not contended for here. Indeed, it would be altogether changing SCALTOCK the effect of the covenant. As far as I can form an opinion, it has never been held that notice of assignment is necessary before advantage can be taken by the assignee of the breach of a covenant to repair. It may be that this rule will inflict some hardship on the tenant, as where the want of repair is but trifling on the other hand, the tenant may have grossly neglected the premises, and then the hardship would be the other way. Besides, if there be any hardship, the legislature may remedy it, as in the case of a breach of the covenant to insure. Our duty is simply to administer the law as we find it. The reasoning in Mallory's Case (1) and Fraunces's Case (2), when explained, is clear. There is no case nor any decision which applies that doctrine to the case of a forfeiture for breach of the covenant to repair. I think the verdict was properly entered for the plaintiff in this case, and that this rule should be discharged. ARCHIBALD, J. This is an action of ejectment brought by the assignee of the reversion of a lease against the tenant, to recover possession of the premises on the ground of a forfeiture by reason of a breach of a covenant to repair contained in the lease. At the trial a verdict was entered for the plaintiff: and a new trial is asked for on the ground that the forfeiture was not complete without notice to the tenant of the assignment of the reversion to the plaintiff. The rights of the parties become obvious when the course of legislation on the subject is followed. At the common law, for feudal reasons, there might have been an assignment of the reversion; but such an assignment would not have made the tenant, unless he consented to become so, tenant of the assignee. He could not be made a vassal without his consent. The assignee of the reversion at common law had a right to distrain for rent, because the rent was incident to the reversion: but he had no right to avail himself of a condition of re-entry. Such being the state of things at common law, and inconvenience being found to result from it, on the dissolution of monasteries the stat. 32 Hen. 8, c. 34, was passed, giving to the assignee of the reversion the same (2) 8 Co. Rep. 93. a. (1) 5 Co. Rep. 113, b. 1875 SCALTOCK V. HARSTON. rights as the lessor or grantor himself had before. That still left open the question what was essential to constitute an assignee of the reversion; and it was found to be still necessary, notwithstanding that statute, that there should be an attornment by the tenant, except in those cases in which there was a conveyance by bargain and sale under the Statute of Uses. That was the state of things which existed between the passing of the stat. 32 Hen. 8, c. 34, and that of the 4 Anne, c. 16. This last-mentioned statute (ss. 9, 10) did away with the necessity of attornment, but took care at the same time to protect a lessee who had paid rent to the lessor without having had notice of the assignment of the reversion. Its operation was to complete the title of the assignee, and to protect the tenant against the breach of a condition for payment of rent. In the case of non-repair, it is not necessary to give notice of the assignment of the reversion, to entitle the assignee to re-enter for breach of the covenant. LINDLEY, J. I am of the same opinion. The defendant contends that the assignee of the reversion cannot enter for breach of the covenant to repair, without notice of the assignment to the tenant. Why should notice be necessary? The answer is not obvious. It is quite immaterial to the tenant who is his landlord: he is bound at all events to keep the premises in repair. Then, how does it stand upon authority? The authority which is most favorable to the defendant's contention is the passage from Coke cited in Com. Dig. Condition (0. 2.). But, when looked at, Mallory's Case (1) does not warrant that proposition. Before the Statute of Uses and 32 Hen. 8, c. 34, there were difficulties in the way of grantees of the reversion taking advantage of a condition broken. These difficulties were removed by those statutes, subject to an exception which was ultimately done away with by 4 Anne, c. 16; and it is now no longer necessary to give notice of the assignment except in the case of a forfeiture for non-payment of rent. Solicitors for plaintiff: Lewis & Sons. Solicitors for defendant: Webb, Stock, & Burt. (1) 5 Co. Rep. 113. b. Rule discharged. |