
    Robert and George Crawford vs. Wm. B. Chapman.
    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.
    This is a Writ or Error to the Court of Common Pleas of Hamilton County.
    The record shows the following facts :
    On the 4th of February, 1837, Edward, Inskip made a lease of certain premises to Chapman, for ‘ten years from the 7th April, 1837, át a yearly rent of four hundred 'dollars, payable in quarterly instalments. By the lease, Chapman covenanted that he would “ well and truly pay the rent aforesaid,” at the several periods mentioned.
    On the 28th of November, 1838, Inskip conveyed the premises (without mentioning the lease) to Luther Rose, by deed duly executed, with a covenant against his own acts.
    •On the 1st of July, 1841, Rose conveyed to Robert and George Crawford, in like manner, the premises.
    In the year 1844, R. and G. Crawford brought their action against Chapman, upon the lease, averring that two hundred dollars of the rent, reserved for the two quarters ending July 1843, were due and unpaid — contrary to the inten’f and of the express covenant.
    To this action, Chapman filed the following plea :
    And the defendant, by his attorneys, comes and says that the plaintiffs ought not to have the action aforesaid, against him, because he says that on the second day of February, in the year eighteen hundred and thirty-nine, at the county of Hamilton aforesaid, before the rent mentioned in the declaration was in arrear, after the assignment by Edward Inskip to Luther Rose of the said reversion, and before the assignment thereof, by the said Luther Rose, to the plaintiffs, he, the said defendant, by his deed of that date, duly signed, sealed, acknowledged, and delivered, did transfer, set over, and assign to one Lewis Stagg, all his interest, right, claim arid title, in and to the said lease, and the premises thereby demised, for the unexpired portion of the said term, subject to the conditions, covenants, and reservations in the said lease, to him the said defendant, from the said Edward Inskip contained — which said deed the defendant here shows to the Court. And the defendant then and there surrendered the possession of the said premises to the said Lewis Stagg by virtue of the said assignment. And the defendant avers that the said Luther Rose then and there accepted the said Lewis Stagg as his lessee and tenant in lieu of this defendant, and afterwards, to wit: on the seventh day of April, in the said year, received from the said Lewis Stagg the amount of the rent then accrued upon the said lease, according to the terms thereof, to wit: at the county of Hamilton aforesaid. And neither the said Luther, before the said assignment to the plaintiffs, nor the plaintiffs since the' said assignment to them, has nor have demanded of the defendant the rent reserved upon the said lease, at. the several times of paying the same, since the said second day of February, in the year aforesaid, to wit: at the county of Hamilton aforesaid, And this he is ready to verify. Wherefore he prays judgment if the plaintiffs ought to have the said action against him. To this the plaintiff demurred generally.
    Judgment was rendered in the Court of Common Pleas for the defendant, to reverse which this writ of error is prosecuted. The error assigned is that judgment was given for defendant, when it should have been given for the plaintiffs.
    
      Groesbeck &f Telford, for Plaintiffs in Error,
    cited the following authorities :
    
      Port v. Jackson, 17 Johns. Rep. 239; Com. on Land, and Ten. 275; Parker v. Webb, 3 Salk. 5 ; Fulton et al. v. Stewart, 2 Ohio, 215 ; Scott v. Lant’s Adm’rs, 7 Pet. Rep. 596; Platt on Cov. 194-5, 485, 491-2, 533, 537.
    
      George E. Pugh &f S. M. Hart, for Defendant in Error,
    cited the following authorities:
    
      Reed v. McGrew, 5 Ohio Rep. .375; Saunders v. Pope, 1 Ohio Rep. 486; Oakley v. Boorman, 21 Wend. Rep. 588; 2 Man. & Ryl. 3; 3 Johns. Rep. 528; 1 Johns. Ch. Rep. 429; 2 Johns. Ch. Rep. 416 ; 4 Bro. Pari. Cas. 421; 17 Ves. 363; 1 Ver. 240.; 9 Mod. Rep. 362; 7 Cow. Rep. 50; 11 Ver. Rep. 549; 14 Johns. Rep. 330; 21 Wend Rep. 628; Shep. Touch. 396 ; 9 Watts’ Rep. 106; 7 Ohio Rep. (part 1st) 275 ; 2 Ohio Rep. 339; 9 Ohio Rep. 98; 4 Kent’s Com. 473, note ; Gilb. Ten. 67, 68.
   Birchard, C. J.

The first question in order which is presented upon this record goes to the sufficiency of the declaration and is this, can a grantee of the reversion 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 ? If this question is answered in the negative the necessity of any further inquiry will be superseded. That one point, if against the plaintiffs, is decisive of the merits of the case.

At common law choses in action were not assignable, and none kut Pities or privies to express covenants were bound by or could take advantage of them. The rule seems to have been well settled in England, and to avoid its effect and enable the assignee of the reversion to maintain an action in his own name upon the express real covenants, those running with the land, the statute, 32 Hen. 8, Ch. 34, was enacted. Prior to that time grantees of reversions were regarded in the light of strangers. After its passage, in virtue of the act itself, the assignee of the reversion could maintain his action upon the express real covenants. It enabled the lessor and reversioner successively to transfer from one to the other the privity of contract. Platt on Cov. 527 to 533.

But it is claimed that this statute has become incorporated into the law of Ohio, not as a statute law, or by virtue of legislative jurisdiction, but as a part of the common law, which has been adopted as a body or system of law into the American code generally. That it is a part of the system, being in aid of the common law and not repugnant to our institutions, which is as operative in this State as in the English Courts.

It is not known to any one of us that this precise question was ever before presented for the consideration of this Court.

In 1793 a statute was adopted from Virginia, declaring'** that the common law of England and all statutes made in aid of the common law prior to the fourth year of James 1st which were a of a general nature, should be a rule of decision until repealed, within the territory.” 1 Chase, 190.

By the 2d section of the act passed Feb. 22,1805, the above law was repealed, and by the first section of the same act it was re-enacted. (1 Chase, 512.) And again it was repealed January 2, 1806. (Chap. 122, 1 Chase, 528.) Since that date we can discover no legislation upon the subject. The adoption of the law from Virginia and the two enactments of 1805 and 1806 by implication, necessarily show that the British statutes never had any force in Ohio save ■ that derived from their adoption by the Legislature. In all cases where the British statutes contravene or change the common law and are not so incorporated into it as to have become part and parcel of system, it is supposed they have no force within this State dependent of Legislative enactments adopting them.

It was so held in 7 O. R. 276, in reference to the English statute of uses. 27 Hen. 8, Chap. 10. In Scott v. Lant’s administrator, the force of the Statute of Henry 8, Ch. 34, was placed upon the ground of its adoption by the Virginia Legislature. 7 Pet. Rep. 606.

But it is said that this Court has impliedly recognized for one purpose the operative force of the statute 3% Henry 8. The case referred to as evidencing this recognition, is Fulton & Kirker v. Stuart, 2 O. R. 215. That was a suit by the lessor against the assignee of a part of the demised premises, and it was held that the lessor could not maintain covenant against him. He was a mere under lessee. We admit that enough is said in that case to show that if there had been an assignment of the entire leasehold interest, the action would have been sustained. Not, however, solely in virtue of the statute of Henry 8th, but upon the principles of the common law, wholly independent and without the aid of that statute. The covenant when it ran with the land so as to charge the grantee’s or lessee’s assignee, possessed that' property under the rules of the common law, long anterior to that statute. Platt, 541.

Many cases are to be found, in the older books of reports, regarding the liabilities of the assignees of demised premises on covenants running with the land. They were uniformly held liable at common- law on account of the privity of estate between the contending parties. In some cases the assignee of the lessee is bound where the word assigns is not mentioned in the lease. In others his liability accrues solely in consequence of assigns being included in the covenant.” Spencer’s case, 5 Coke, 16 ; Platt on Cov. 465, and the cases there cited. The covenant to pay rent is of the first, class, in which the assignee is said to be bound though not named. Stevenson v. Lamberd, 2 East. 575; Porter v. Swetnam, Sty. 406; Parker v. Webb, 3d Salk, 5.

There is nothing, then, in the inference drawn from the case of Fulton & Kirker v. Stewart, because the supposed fact upon which that inference is based does not exist. The statute of Henry 8 was not recognized even by implication in that case, as operative to any extent. There was nothing in the case to call the attention of the Court to the subject. Nothing upon which any question growing out of the act could be raised.

Judgment affirmed.  