
    Smith v. Harrison.
    1. The lessee of a perpetual leasehold estate is liable, upon an express covenant to pay rent to the lessor, his heirs and assigns during the term, in an action by the assignee of the reversion for accruing rents, whether . such rents accrue before or after an assignment by the lessee of all his interest in the leasehold estate.
    3. Such covenant for rent runs with the land, and an assignee of the reversion may, under our code, sue thereon in his own name.
    3.- The receipt of rents from the assignees of the leasehold estate does not absolve such lessee from liability on his express covenant.
    ERROR to the Superior Court of Cincinnati.
    On December 1, 1846, one John Mears, being the owner in fee simple of certain real estate in the city of Cincinnati, by deed duly.executed, leased the same to Winthrop E. Smith, his heirs and assigns, for the full term of ninety-nine years, thereafter renewable forever.
    In said deed of lease, Smith, for himself, his heirs and assigns, covenanted with said Mears, his heirs and assigns, to pay an annual rent for the premises demised, of $1,200 per year, during the term, payable in monthly installments of one hundred dollars each, on the first day of each and every month during the term. Under this deed, Smith entered into the possession of the premises, and payed rent until July 1, 1863, at which time lié sold and transferred to one Alven Austin, his heirs and assigns forever, said leasehold estate and all his interest therein- — said Austin expressly assuming the payment of all future rents under the lease from Mears, entered into the possession of the premises and paid all accruing rents during his .lifetime. Subsequently, about the year 1875, by sundry proceedings and conveyances, one Lorin N. Smith became the owner in possession of said leasehold estate, pacing rent therefor.
    In the year 1871, by a proceeding in partition between the heirs of John Mears, Mary A. Harrison became the owner of the fee simple estate in said premises, and has, from time to time, collected rents as they matured from said Alven Austin, and his heirs, and from said Lorin N. Smith, owners of said leasehold estate. - . ;
    The installment of rent maturing on -the first of March, 1880, being due and unpaid, payment thereof was demanded by Mary A. Harrison of Winthrop B. Smith, who refused to pay the same; whereupon, the original action was brought, to recover one hundred dollars, the rent due March 1, 1880, with interest from that date, in the superior court of Cincinnati:
    On the trial, judgment was rendered in favor of the plaint* iff, Mary 'A. Harrison, and against Winthrop B. Smith* defendant, for the amount claimed.
    To reverse this judgment, this proceeding in-error is prosecuted.
    
      McGuffey, Morrill <& Strunk, for plaintiff in error:
    The sole question is, whether, after an unconditional assignment by the lessee of a lease for ninety-nine years, renewable forever, such lessee is liable for future rent to the assignee of the reversion, such assignee having collected rent from such assignee of the lessee and recognized him as tenant.
    In Worthington v. Hewes, 19 Ohio St. 66, the negative of this proposition is clearly held, and also the further proposition is stated, in the second division of the syllabus, “ that after an unconditional assignment by the lessee, he is not liable for future rents,” that is to say, he is not liable even to the original lessor. So far as this ease implies that such assignment defeats an action in such case by the original lessor, it is overruled by the cases of Harmony Lodge v. White, 30 Ohio St. 569, and Taylor v. JDeBus, 31 Ohio St. 468.
    But from an examination of the facts in the two last cases, it 'will clearly appear that they have no necessary application to a ease like this, at bar, where the suit is by the assignee of thp reversion. While, on the other hand, the case cited from 19 Ohio St. was a case by the assignee of the reversion, and the decision stands as the law of Ohio, that such assignee cannot recover.
    But further, in the case of Taylor v. JDeBus, 31 Ohio St. 473, it is said, “it may well be doubted whether in an action by the assignee of the reversion against the lessee, after an assignment of all his interest, a recovery could be had upon his express covenants, there being no privity, either of personal contract or of estate between the parties,” the court citing Crawford v. Charpmcm, 17 Ohio, 449; Sutliff v. Atwood, 15 Ohio St. 186.
    In the first named of these cases, it is directly decided that “the grantee of the reversion cannot maintain an action of covenant in his own name against a lessee upon an express covenant contained in the lease for the payment of rent.”
    Again, in the case cited from 15 Ohio St. 192, it was held that the assignee of the reversion in such a case could not maintain an action, for the “privity of contract was wanting and privity of estate alone would not sustain the action of covenant without the aid of the statute of 32 Henry VIII., which has not been adopted in this state.”
    But it is said that the first of these cases turns upon the fact that at common law such action could not be maintained, and that the statute of Henry VIII. had not been recognized in Ohio, and further that it was held in case of Masury v. Southworth, 9 Ohio St. 340, that our code of civil procedure supplies the place of the statute 32 Henry VIII. in this respect. As regards this we submit, 1st. The case cited from 15 Ohio St. does not recognize any such application 'of the code, although decided since that in 9 Ohio St. 2d. Whatever was said in 9 Ohio St. upon this point was entirely unnecessary for the decision of the case, from the fact that the court based its decision upon the ground that the covenant sought to be enforced ran with the land, moreover the action was against the assignee of tire lease, he being then in possession, and therefore between whom and the assignee of the reversion there was actual privity of estate. 3d. In the case at bar there is no privity of estate between the plaintiff and defendant. This exists only between Mrs. Harrison and the party .in possession. Privity of estate depends upon occupancy. Taylor on L. & T. § 436. 4th. Again, there is no privity of contract between the parties hereto. By reference to the petition for a statement of the terms of the conveyance to this defendant in error, it will be seen that the conveyance did not undertake to transfer to her the demise to this plaintiff. It is simply referred to for the purpose of description, without reference to whether or not it was then in force.
    
      Stover dc Harrison, for defendant in error:
    We submit that, by the express covenant of' the lease, Smith, the lessee, has attorned in advance to any and every assignee of the reversion. His liability is one arising out of express contract, as well as one implied by law from a privity of estate ; and it may not be necessary to go into the question whether his covenant be one the right to take advantage of which runs with the land, or no. Thursby v. Plant, 1 Wms. Saund. 240; Spencer’s Case (Note) 1, Smith Lead. Cases, 30; Id. American Notes, 143; Easter v. L. M. II. Ii. Co., 14 Ohio St. 51; Harmony Lodge v. White, 30 Ohio St. 569-574. If, however, your honors in this case be of opinion that the question of general importance, whether the right of action pass to the assignee of the reversion, can be raised, and the doubt arising from Worthington v. Hewes, and Tcuylor v. He Bus, can be settled, we submit, that the law of Ohio is now, what the law of Great Britain and the majority of the states of the Union has been for many years. This doubt is clearly stated in the language of the court in Taylor v. He Bus, 31 Ohio St. 493. “ It may well be doubted whether, in an action by the assignee of the reversion against the lessee, after an assignment of all his interest, a recovery could be had upon his express covenant, there being no privity either of personal contract or of estate between the parties.”
    For this doubt the learned judge refers to Crawford v. Chcupmm, 17 Ohio, 449, and Suiliff v. Ahwood, 15 Ohio, St. 186. ’
    
      The law.of Ohio on this subject is substantially embraced in the following cases, which include all cited by counsel for plaintiff in error : Orawford v. Chapman, 17 Ohio St. 49; Masury v. Southworth, 9 Ohio St. 840; Sutliff v. Atwood, 15 Ohio St.186 ; Worthington v. Hewes, 19 Ohio St. 66; Taylor v. De Bus, 30' Ohio St. 468.
   McIlvaine, J.

That Mary A. Harrison, plaintiff below, had succeeded to the estate of reversion in fee, and was entitled to the rent reserved in the lease by Mears, the lessor of Winthrop B. Smith, is not disputed. The contention of Smith is, that, having parted with all his interest as lessee of Mears by transfer and assignment to Austin, from whom and those claiming under him, the lessor aud those claiming under him, had received the rents, that no further liability rests on him as lessee to pay rent, and especially to an assignee of the reversion between whom and himself there exists no privity either of contract or estate.

The covenant of Smith, as lessee, was to pay rent to Mears his lessor, his heirs and assigns during the term. The liability sought to be enforced against him is within the very letter of the covenant. The relation of Mary A. Harrison to the leasehold estate is that of assignee of the reversion, and as such she is entitled to the rent. True, the covenant of Smith to pay rent was not made with her, but being the party in interest, her right to sue for the rent in her own name is secured by section 4993 of Revised Statutes, which provides, “an action must be prosecuted in the name of the real party in interest.” This would secpre her right of action, had she become the assignee of rent past due ; but her right to the rent arises from her ownership of the reversion. The covenant for rent by the lessor came to her by succession to the lessor’s estate. It was a covenant that' passed with the land, and although not made with her, it was made for her benefit. Hence, her right of action on the covenant, under our code, though the statute of 32 Henry Till, be not in force in this State: See Crawford v. Chapman, 17 Ohio, 449; Masury v. Southworth, 9 Ohio St. 340.

A perpetual leasehold estate is not a fee simple, although, by our statutes, it has many incidents of a fee simple estate Taylor v. De Bus, 31 Ohio St. 468. Tire fee simple remains in the lessor, his heirs and assigns. The principal value of which is the right to the rents reserved by the lease. And the right to sue for and recover rents follows the fee simple estate, and the action therefor must be in the name of the owner of .the fee at the time the rent accrues.

As to the fact that the plaintiff below, as well as her predecessors in interest, had received rent from the owners of the leasehold, after the defendant had assigned and transferred all his interest therein, it will be sufficient to refer to Sutliff v. Atwood, 15 Ohio St. 186, where it is said, “ The liability of the lessee arising from his express contract, is so permanently fixed during the whole term, that no act of his own can absolve him from the lessor’s demands in respect to it.” That was an action by the lessor against the lessee; but the principle applies in any case upon the lessee’s covenant, where the plaintiff is entitled to the rent secured by the covenant.

It was also decided in that case, that an assignment by the lessee, with the lessor’s concurrence and his subsequent receipt of rent from the assignee, will be ineffectual to discharge the lessee from his liability. “ The lessor, when there is an express agreement of the lessee, may sue at his election, either the lessee or the assignee, or may pursue his remedy against both, at the same time, though of course with but one satisfaction.” The foundation of the action by the assignee of the reversion against the assignee of the leasehold, is the privity of estate between them. The principle is that the latter shall not enjoy the former’s property without the payment of rent. The action against the lessee is upon his express covenant to pay rent during the term, which, as we have above said, runs with the land and vests in the assignee of the reversion the right to receive the rents accruing during his ownership of the fee.

Judgment affirmed.  