
    Thomas Fletcher and Another versus John M’Farlane.
    Where a recovery was had upon a writ of formedon, and the tenant had, before such recovery, demised the premises by indenture, the lessee covenanting tc pay rent; and the lessee afterwards assigned the lease, the assignee covenanting to pay the rent to the lessor ; and the lessee had been compelled to pay rent accruing after the assignment and before the recovery against the lessor, the assignee was holden to indemnify him for such payment.
    Where there are covenants by a lessee to pay rent, the lessor may have his action on the convenant, notwithstanding an assignment of the lease by the lessee, and an acceptance of a portion of the rent by the lessor from the assignee ; but in such case debt for the rent in arrear will not lie for the lessor against the lessee.
    This was an action of assumpsit, to recover the rent of a certain house and shop, situate in Boston. There were divers counts in the declaration ; in one of which the plaintiffs allege that one William Pelham, by indenture between him and the plaintiffs, demised the premises to them, to hold from September 1st, 1810, for the term of four years, unless within that time the rector and wardens of the King’s Chapel in Boston should recover judgment against said Pelham, in a suit then pending between them *for the [*44] said premises, and should evict the said Pelham therefrom. The rent was to be at the rate of $ 1000 per annum, payable quarterly, which the plaintiffs in and by the said indenture covenanted to pay to said Pelham. On the 8th day of August, 1811, the plaintiffs, by their deed of that date, assigned to the defendant all their right, title, interest, and estate, in the premises, he paying to the said lessor all the rent then due, or that should become due, according to the said indenture, and indemnifying the plaintiffs against all their covenants therein contained. It is then averred, that the defendant entered and occupied the premises, pursuant to said assignment, until the 6th day of April, 1813 ; but has not paid all the rent due to the lessor, and that the plaintiffs were compelled to pay, and did pay, to the lessor $625.51, which remained due to him by force of said indenture.
    
    The cause was tried on the general issue before Jackson, J., at the last November term in this county, when it appeared that the said indenture and assignment were made as above set forth. The defendant entered accordingly, and occupied the premises, until he was ejected by the said rector and wardens, who recovered judgment against the said Pelham in the suit before mentioned, and were put in possession of the premises by force thereof on the said 6th of April, 1813. There were then some arrears of rent due to said Pelham according to the terms of the said indenture. He demanded payment thereof, in September following, of the defendant, who refused to pay the same. He then resorted to the plaintiffs, who lived in Philadelphia, and was about to institute a suit against them on the said indenture, to recover the said money, when they paid him the sum of $625.51, being the amount of the said arrears, with some interest thereon, by their note, dated November 8th, 1813, payable in ninety days.
    On the part of the defendant, it appeared that the said Pelham, after said assignment, namely, on the 6th of September, 1811, [*45] accepted a quarter’s rent from the defendant, which *was due on the first of that month by the terms of the indenture. It was not in evidence, in what manner the other rent had been paid.
    It also appeared that the said rector and wardens claimed the premises under the will of William Price, who devised the same to certain persons for life, with remainder to the said rector and wardens in fee upon certain conditions ; that, after the decease of the last of said tenants for life, namely, on the 25th of April, 1809, the said rector and wardens went into the said house and shop, then occupied by said Pelham, and informed him that they had accepted the said donation made to them in and by the will of said Price, and had come to enter upon and take possession of the premises, and that, if he, the said Pelham, continued to occupy the same, they should expect that he would pay rent therefor to them ; that the said Pelham did not yield to them the possession ; whereupon they brought an action of formedon in remainder against him, which is the same suit above mentioned; and that an habere facias seizinam was.issued on their judgment recovered in that suit; by force of which seizin was delivered to them by the sheriff on the said 6th of April, 1813.
    
      A verdict was taken by consent for the plaintiffs for $696.42, subject to the opinion of the Court upon the foregoing facts as reported by the judge.
    The cause was argued by Peabody, for the plaintiffs, and by W. Sullivan, for the defendant.
    The opinion of the Court was delivered by
    
      
      
        Quere why would not a simple declaration for money paid him have answered the same purpose as the above ?
    
   Parker, C. J.

[After stating the facts from the judge’s report. ] The first objection made to the recovery in the present action, which, however, has not been much insisted on, is, that, as the plaintiffs had assigned the lease, and Pelham, the lessor, had accepted rent of the defendant, the assignee, he had no legal remedy against the plaintiffs, who, having paid voluntarily and in their own wrong, ought not now to recover back from the defendant.

* But it is very clearly settled by the authorities cited by [ * 46 ] the counsel for the plaintiffs, that, although debt for rent cannot be maintained against a lessee, who has assigned, after acceptance of rent from the assignee ; yet, if there are covenants in the lease to pay the rent, the covenants remain in force, and an action lies upon them between the lessor and lessee, notwithstanding the assignment and the acceptance of rent from the assignee.

The next objection is, that the entry of the rector and wardens, on the 25th of April, 1809, put an end to the estate of Pelham ; for, by the judgment subsequently obtained by them upon their writ of formedon, the title is proved- to have been in them at the time of their entry, and they would have an action against Pelham for the mesne profits ; so that Pelham, not being entitled to the rent, the plaintiffs in this action could not by law have been compelled to pay by virtue of the indenture of lease, and so ought not to recover of the defendant the money paid by them.

But there are insuperable.legal difficulties in the way of this defence. In the first place, the title under the gift is, by the judgment m formedon, established only from the rendition of the judgment; no entry by the demandants or disseizin being alleged as the foundation of their suit.

Further, it is very clear, that, if the rector and wardens have any itction of trespass for the mesne profits, it is only against Pelham, who ¿cpt them out. For, as the plaintiffs entered by virtue of the indenture of lease, and the defendant by virtue of an assignment of that indenture, neither of them can be considered as trespassers,, nor was there any privity between them and the rector and wardens, which would subject them to an action for the use and occupation. Now, if no action can be maintained against Pelham, he has the right to receive the rent stipulated in his indenture with the plaintiffs, and can hold the same against every one ; and, if he is liable for the mesne profits, he was entitled to receive the rent, to enable him to answer to the rector and wardens for those profits.

[*47] *But there is another ground upon which this defence « must fail; which is, that, whether Pelham is liable to the rector and wardens or not, still the present plaintiffs could not have successfully resisted an action upon their covenants to pay the rent to him. The deed was an estoppel to them to deny the title of Pelham in the premises. Nil habuit in tenementis would not have been 1 good plea to an action of covenant or debt founded upon the inlenture ; and here was no eviction, but a bare entry upon Pelham himself, who refused to surrender possession ; but continued to occupy, until he made the lease to the plaintiffs. They, therefore, acted wisely in paying the arrears of rent, when demanded of them according to their covenants ; and the defendant, having accepted an assignment containing a stipulation to pay what the plaintiffs were obliged, by 'their covenants in the indenture, to pay, must be considered in law to have promised to reimburse and indemnify the plaintiffs ; no obligation or written contract having been given to that effect at the time ; according.to the case of Goodwin & al. vs. Gilbert & al., which was cited in the argument.

We think, therefore, that the verdict is well supported by the evidence in the case, and that judgment must be entered accordingly.

Judgment on the verdict. 
      
       2 Saund. 303, note 3.-4 D. & E. 98 —1 B. & P. 21.
     
      
       The lessor and lessee are bound to one another in respect of the covenants in law, and the duties prescribed by law as incidents to the relation of landlord and tenant, by privity of estate, and in respect of conditions and covenants in deeds by privity of contract. Privity of estate exists no longer than the relation of landlord and tenant; and. therefore, if the lessee part with his estate to a stranger with the concurrence of his lessor, the pHvity of estate is destroyed, and his liability thereupon ceases (Walker's case, 3 Rep. 246. — Marsh vs. Brace, 2 Buls. 151 —Cr. Jac. 334. — Brett vs. Cumberland Cro. Jac. 523. — Anon., 1 Sid 447. — Thursby vs. Plant, 1 Saund. 840, n. (5). —Ashurst vs. Mingay, Show. 134); though he cannot put an end to the privity of estate without such concurrence. Wadham vs. Marlow, 8 East, 316, n —Auriol vs. Mills, 4 D. E. 98. But it is otherwise in respect to the lessee’s liability upon the privity of contract. For, when he has entered into an express agreement, he is so completely bound thereby, that no assignment, either of part or the whole of the estate, can exonerate him, even though the lessor assent to the assignment and re ceive rent of the assignee. Rushdew's case, Dyer, 46. — Broome vs. Hore, Cro Eliz. 633. — Matines vs. Westwood, ib. 617. — Ards vs. Walkin, ib. 637. — Barnard vs. Godcall, Cro. Jac 308. — Brett vs. Cumberland, lb. 552.—Norton vs. Achlane. Cro. Car. 580 —Bachelour vs. Gage, ib. 188 —Ashurst vs. Minot, Show 134. — Parker vs. Webb, 3 Salk. 5 — Wadham vs. Marlow, 8 East, 314, n.— Buckland vs. Hall, 8 Ves. 95. — Staines vs. Morris, 1 Ves. & Bea. 11. Neither his own act nor the act of the law will release the lessee from his covenants. Hornby vs. Houlditch, Andrews. 40. — 1 D. & E. 92. — Auriol vs. Mills, 4 D. & E. 99.
     
      
      
        Liford case, 11 Co. 51.
     
      
       As to the doctrine in Liford’s case alluded to, see Emerson vs. Thomson & al., 2 Pick. 473.— Taylor vs. Townsend, 8 Mass. Rep. 415. — Cox vs. Callender, 9 Mass Rep 533.
     
      
      
        Lev. 146.
     
      
       9 Mass Rep. 510.
     