
    *M’Clenahan v. Gwynn.
    Argued Nov. 16th, 1811.
    1. Lease — Assignment—Liability of Assignor. — A person assigning a lease, for value received, but without any special agreement to be responsible for the title, is not bound to restore the purchase-money, upon the eviction of the assignee, in consequence of a defect in the lessor’s title; especially where the lessor has not been previously resorted to, or shown to be insolvent, and where the possibility of the eviction was in contemplation of both the parties at the time of the assignment.
    2. Same — Samé—Liability of Lessor to Assignee.— Where a lease is assigned, and the assignee is evicted, through a defect in the lessor’s title, he may sue the lessor for compensation.
    This was an action of assumpsit, instituted in the late district Court, holden at Hay-market, by Humphrey Gwynn against John M’Clenahan.
    The declaration contained three counts. The first set forth a general assignment to the plaintiff, by the defendant, (who was himself an assignee, the several assignments being stated,) of an unexpired term of a lease from Thomas Nelson, sen., to Richard Milton ; which assignment was made to the-plaintiff, on the 3d of January, 1797, in consideration of the sum of 1,208 dollars, then paid by him to the defendant, who was charged as having “sold the said lease, as one to which he had full and complete title, and as one assuring a term then unexpired, to which he, the said defendant, had rig-ht, and good authority to convey and assure ; yet the defendant’s title to convey and assure the same lease and term then unexpired was feigned and imperfect; ” for, by a decree of the federal Court, foreclosing a mortgage given by a certain Lewis Burwell, of whom Thomas Nelson, the lessor, bought the land, (which suit was instituted before the assignment to the plaintiff as aforesaid, and to which decree neither the plaintiff nor defendant was a party,) the plaintiff was evicted, and lost the benefit of the lease.
    The second count was the same in effect, adding the charge of a representation by the defendant that he was selling a good title. The third was for money had and received.
    On the general issue, a special verdict found the lease; the several assignments thereof, including that to the plaintiff, which was in general terms, for value received; the sum given for it by the plaintiff; the value of so much of the term as was yet to run when the plaintiff *was evicted; the proceedings in the federal Court; and the plaintiff’s surrender to the marshal of that Court, to avoid a forcible eviction. It was further found, “ that the plaintiff was, prior to the time of his taking the said assignment, informed, in general terms, that the said demised premises had been mortgaged by the said Thomas Nelson, the lessor, subsequently to his said lease to Richard Milton, and that a sale of the same, under such supposed mortgage, would prob-ably take place; that the general impression and belief of the public, in the vicinity, was that the same had been so mortgaged by the said lessor; but that the plaintiff was probably ignorant of the existence of the mortgage made as aforesaid by Lewis Burwell, and purchased the said assignment under the impression and belief that the full and quiet enjoyment of the demised premises, for the then unexpired residue of the said term, was secure to him, notwithstanding any mortgage ; that it was known to the plaintiff that there was a mortgage on the premises, included with other lands, before he made the purchase of the lease ; and that a sale of the said land was expected generally in the neighbourhood, before and after the said assignment to the plaintiff; that the last-mentioned general information the plaintiff had received in several companies in the neighbourhood, in which. he was present; that the probability of the sale, which took place as aforesaid, of the said land, was particularly mentioned, immediately before the conclusion of the bargain between the defendant and plaintiff; that the defendant had sown about 80 bushels of wheat on the premises, and that the plaintiff reaped and ■enjoyed the crop.” The verdict concluded ‘with finding for the plaintiff (in the usual ■conditional manner) 913 dollars and SO cents ■damages.
    The district Court entered judgment for the plaintiff ; whereupon the defendant appealed to this Court.
    Williams and Wickham, for the appellant.
    Botts, for the appellee.
   ^January 30th, 1813, the following opinion of the Court was pronounced :

“The Court (not deciding any other point occurring in this cause) is of opinion, that the action did not lie against the present appellant; the principle being, that, in case of a mere assignment of a lease, the assignor is not liable to restore the purchase money, in case of eviction ; and especially in this case, where the lessor’s representatives have not been previously resorted to, or shown to be insolvent, and in which, also, no special agreement for the assignor’s responsibility has been entered into, although the liability of the land to eviction and sale seems, from the verdict, to have been in the contemplation of both the parties. On this ground, the judgment is to be reversed, and entered for the appellant.” 
      
      Note. That an action of covenant lies, at the common law, by the assignee of the lessee, against the lessor, or the grantee of the reversion, in respect of the privity of estate, see 5 Co. Rep. 17, a. Spencer’s case. For the same reason, of privity of estate, the lessor may have debt or covenant, for rent, or for not repairing, &c. against the assignee of the term, at common law. 3 Co. Rep. 22 b. Walker’s case. See, also, I Saunders, 241, notes (6) and (6): Holford v. Hatch, Doug. 182-186; Palmer v. Edwards, lb. 186, note (59.) But if a term be assigned by way of mortgage, with a clause of redemption, the lessor cannot sue the mortgagee, as assignee of all the estate, right, title, interest, &c., of the mortgagor, even after the mortgage has been forfeited; unless the mortgagee has taken actual possession. Eaton v. Jaques, Doug. 454. And if the assignee of a. term assign all his estate, right, &c., to another, without fraud, he is thereby discharged from all responsibility to the lessor; (Walker v. Reeves, Doug. 461, note (1); Chancellor v. Poole, Ibid. 764r Taylor v. Shum, 1 Bos. &Pull. 21:) if he show that the lessor had notice of the assignment, and that there was nothing due at the time of the assignment. 3 Salk. 48. — Note in Original Edition.
     