
    GENERAL COURT,
    OCTOBER TERM, 1789.
    John Moale against Elisha Tyson.
    APPEAL from Baltimore County Court. By the record it appears that this was an action of covenant brought by the appellant, the plaintiff in the court below, against the appellee, the defendant therein, upon an identure of lease executed by Richard Moale (whose devisee the said John is) to the said Tyson. The declaration states a breach for non-payment of one year’s rent, amounting to 20/. lli. sterling money, &c. ending on the 1st of April, 1786.
    The pleas are as follows : “ And the said Elisha Tyson by Richard Ridge ley, his attorney, comes and defends the force and injury, when, &c. and saith, that the said John ought not to have or maintain his action aforesaid thereof against him, because he says that after the said demise of the lands and premises by the indenture aforesaid by the said Richard Moale in his life-time to the said Elisha, as is-aforesaid made, and before the said rent of 20/. 1 Is. sterling by the declaration aforesaid above demanded, or any part thereof became due or in arrear, to wit, on the 24th day of December, 1782, at Baltimore County aforesaid, the same Elisha, by indenture duly executed, acknowledged and recorded according to law, assigned all his interest, estate and term of years of, and in the land and premises aforesaid, with the appurtenances to him as aforesaid demised, to one Alexander Woodrop Davey ; by virtue of which said assignment the said Alexander was of the lands and premises aforesaid for the residue of the term aforesaid possessed, whereof the said Richard Moale, in his life-time, afterwards, and before any part of the rent above, demanded became due, to wit, on the 24th of December, 1782, at Baltimore County aforesaid, had notice ; and thereupon the said A. W. D., afterwards, to wit, on the 1st day of April, 1785, at the county aforesaid, paid to the said/?. in his life-time, the sum of 20/. lli. sterling money, for the. rent reserved and then in arrear, due and payable for the land and premises aforesaid, by virtue of the demise afore» said, for one year’s rent, ended on the said first day of April, 1785, which said sum of 20/. lli. sterling money in. manner and form aforesaid paid to the said R. by the said A., as assignee of him the said E., for that rent then in arrear, he the said R. then and there received and accepted ; and this the said E. is ready to verify: wherefore he prays judgment if the said J. his action aforesaid against him the said E. to have or maintain ought,” &c.
    “ And the said E., with the leave of the Court here first had and obtained according to the form of the statute in such case made and provided, comes and further defends the force and injury when, &c. and says that he the said J. his action aforesaid against him the said E. to have or maintain ought not, because he saith that in the life-time of the said R. before the said rent of 20/. 11s. sterling money in the declaration aforesaid mentioned, or any part thereof, became due and in arrear, to wit, on the 24th day of December, 1782, at Baltimore County aforesaid, the same E. assigned all his interest, estate and term of years of and in the lands and premises aforesaid, with the appurtenances to him as aforesaid demised to one A. W. D., by virtue of which said assignment the same A. was of the lands and premises aforesaid, for the residue of the term aforesaid, possessed ; and this the said E. is ready to verify: wherefore he prays judgment if the said J. his action aforesaid against him the said E. to have or maintain ought,” &c.
    The plaintiff demurred generally to both of the pleas, and the County Court, at November term, 1787, gave the following opinion, to wit:
    u By the common law no stranger to any covenant, action, or condition had any advantage or benefit of the same by any ways in the law, except such as were parties or priyies thereto; by reason whereof, all grantees of reversion were excluded to have entry or action against the lessee^, their executors or assigns, which the lessors before that time had against the lessees for the breach of any covenant or condition comprised in the indentures of their said leases. To remedy which it was enacted in 32 Hen* VIII. c. 34. that all grantees of reversion shall have and enjoy like advantages against the lessees, their executors or assigns, by entry for non-payment of rent, waste, of other forfeiture, that the grantors or lessors had; but shall have remedy by action only for non-performance of other conditions, covenants, &c. expressed in the indenture of their lease.
    In our researches we find it laid down by different reporters, as the law of the land, that the contract for the payment of rent is a real contract, follows and waits on the land, and makes the land the debtor; but for collateral covenants, such as to pay a premium, sum in gross, build houses, mills, 8cc. the grantee of the reversion may have his action against the lessee, his assignee, or either of them; but an action of covenant for the payment of rent must be maintained on the privity of estate.
    The counsel for the plaintiff, in the case before the court, have said much in support of what they call a second independent or express covenant. We cannot take this second or express covenant, as they call it, in any point of light different from the first: it is for rent. The first clause says, yielding and paying, &c. yearly and every year, the yearly rent or sum of, cíe. The latter covenant expresses that he shall pay, &c. the said yearly rent or sum of, &V. in such manner andform as the same is herein before reserved and made payable, &c. It is not only rent, it is a re» servation of the same rent as expressed in the first clause, and grounded on the same considerations. It is a real contract, and will follow the estate; and we are of opinion that by the law of the land, an action of covenant for the payment of rent must be maintained on the privity of estate:” wherefore the pleas are good, and sufficient to bar the plaintiff’s recovery.
    
      Cooke, for the appellant,
    in the General Court. This was an action of covenant, brought by the plaintiff against the defendant in the County Court of Baltimore, for the recovery of 20/. 11s. sterling, for one year’s rent due the first of April, 1786, on the express covenant in a lease made by Richard Moaie, deceased, who by his will devised his real estate to the plaintiff.
    From the judgment of the County Court the plaintiff ap» pealed to this Court, and assigned the general errors, to which the defendant has replied there is no error, so that it now remains to inquire if the said judgment is erroneous or not.
    I shall, therefore, on the part of the plaintiff, endeavour to shew that the said judgment is altogether erroneous and contrary to law.
    Covenant is the agreement of two or more persons to do, or not to do, some act or thing contracted between them by deed, under hand and seal, and is either in fact or in law.
    Covenant in fact is what is expressly agreed between the parties, and inserted in the deed.
    
    Covenant in law is that covenant which the law intends and implies, though it is not expressed in the deed in words; as if a lessor demise a house to his lessee for a certain time, the law will imply a covenant on the lessor’s part, that the lessee shall quietly enjoy during the term. 1 Inst. 384.
    ' This action is brought on a covenant in fact, expressly entered into by the lease, and is such a contract as the lessee can never, by any act of his, free himself from.
    I shall therefore shew, in the first place, how far the party is bound by express covenants between the lessor and lessee.
    I shall secondly shew how far the party is bound by the express covenant to the grantee of the reversion; and, lastly, that the devisee of the reversion is entitled to all the benefit of the conditions and covenants expressly entered into by the lessee.
    
      
      First. Lawful covenants in fact bind the party expressly though they become afterwards unlawful, 3 Mod. 39. or impossible by the act of God, 2 Danv. Abr. 84., inasmuch as he has expressly bound himself to do it; as to repair a house and it is burned down by lightning, or any other accident. Alleyn, 26, 27. 1 Lill. Abr. 149. But not so of covenants in law. 1 Plowd. 29.
    An express covenant binds the party though the right of the estate is granted away; 1 Bac. Abr. 535. Bro. Covenant, 32. Roll. Abr. 522. S. C. 3 Lev. 233. Edwards v. Morgan. 2 Danv. Abr. 240. Carthew, 289,290. or ended, or estate void ; 1 Salk. 199. 1 Raym. 388. Northcote v. Underhill. 1 Bac„ Abr. 541. Dean of Norwich’s case. Though he never occupied or entered. Salk. 209. 1 Raym. 170. S. C. It being by the lease or contract, not by the occupation ; also when nothing passed for 5 years, covenant lay for not repairing during that time. 1 Vent. 185. Lewin v. Forth. Though it is burned down and the lessor bound to repair. 2 Stra. 763, 2 Raym. 1477. S. C. 2 Vern. 374. and Com. 627. 630. 632. on covenant to repair when burned by accident.
    Covenant lies by the lessor against the lessee after the lessee has assigned his lease and the lessor accepts the rent of the assignee ; for the personal covenant cannot be transferred by acceptance of the rent. 2 Danv. Abr. 240. Covenant may be brought against the lessee on contract, or against the assignee' on privity of estate, or the lessor may charge both. Cro. Jac. 523.
    If lessee covenant to repair or pay rent and grant over his term, yet covenant lies against him or his executors, though the lessor hath accepted rent from the assignee. Bull. N. P. 159.
    
    When there is covenant to pay a particular liquidated sum, even a court of equity cannot make a new contract or give relief. 4 Burr. 2227, 2228, 2229.
    In leases, the lessee being party to the original contract, continues always liable, notwithstanding any assignments If a man leases for years, rendering rent, and the lessee covenants for him and his assigns to repair the houses during the term, and after the lessee assigns the term over, and the lessor accepts the rent from the assignee, and after the covenant is broken, notwithstanding the acceptance of the rent from the assignee, yet an action of covenant lies against the first lessee ; for the lessee hath covenanted expressly for him and his assigns, and this personal covenant cannot be transferred by the acceptance of rent. Doug. 443, Caton v. Jacques. Doug. 444. Walker v. Reves. Roll. Abr. 522. Cro. Jac. 309. 521. 1 Bac. Abr. 536.
    Though all the estate of the lessee is assigned by act of parliament, if there are no words of discharge, the lessee’s executor is still liable to covenant for rent. And. 40. 11. Hornby v. Holditch.
    
    
      Second point. I am now to shew how far the party is bound by the express covenant to the grantee of the reversion.
    By the statute 32 Hen. VIII. c. 34. grantees of reversions which belonged to any persons, and all other grantees or assighees of any persons,, and their heirs, executors, successors and assigns of every of them, shall and may have like advantage by entry for non-payment of rent, or for doing waste, or other forfeiture, and the same remedy by action only, for not performing other conditions, covenants and agreements contained in the said leases against the lessees and grantees, their executors, administrators and assigns, as the lessors or grantors, their heirs or successors ought, should, or might have had at any time or times.
    ' If A. leases to B. rendering rent, and B. covenants to pay it, and afterwards B. assigns to C. and A. grants the reversion to D. and D. after accepts rent from C., yet for non-payment at another day D. may have an action against B-, it being upon an express covenant. 3 Levinz, 233, Same case cited in Carthew, 177. Sid. 447. 1 Barnadis ton, 372.
    
      
      Bull. 161. 2 Shower, 134. Covenant by the assignee of the lessor against the lessee after his assignment, and after acceptance of rent from the assignee, is good within the statute. Curlhew, 183. Admitted by all, that grantee of a reversion may maintain an action of covenant against lessee himself as well in the county where the demise was made as iu the county where the lands lie ; because the privity of contract between the lessor and lessee is transferred to the grantee of the reversion by the statute of lien. VIÍI. Bull. 161. 2 Show. 134. 1 Sound. 240. 1 Leon. 61. Moore, 242. 1 Bar. 537. A. leases a house to B. who covenants to repair on view of A., and notice that repairs were wanting. Afterwards, the house, by the default of B., became ruinous. A. grants the reversion, to C., who. upon view of the house, gave warning to A. of the default. If it is not repaired, C. may have an action as assignee oí A. against B., (hough the house became ruinous before C. was entitled to the reversion: for the action is not founded on th. ruinous estate of the house, and the time where it first happened, but for not repairing within the time appointed by the covenant after the warning. So is the case of Glover v. Cope, Carthew, 205. in covenant to repair where the second surrenderee of copyhold lands brought covenant against lessee, and determined to be within the equity of the statute 32 lien. VIII. which is a remedial law and of universal use, and absolutely necessary, as well for copy-holders as others. 4 Mod. 60. 3 Lev. 326. 1 Salk. 185. Skin. 296. 305.
    If lessee for years covenants to leave the house hi good repair at the end of the term, and lessor grants the rev ersiou to another, though this covenant is not to be performed during the term, yet for a breach thereof the grantee of the reversion may bring an action, and there cannot be a more apt covenant to run with the land. 1 Bac. 537. Cro. Eliz. 599. 617. Sec 1 P. in Godbolt, 270, 271.
    And these determinations are founded on the reason and justice of the ease. The lessor enters into covenant, with the lessee, as well relying on the person he contracts withy and from a confidence in the man, that he will faithfully perform fiis part, as on any other remedy that the law gives him. The tenant was formerly considered as the bailiff, or person intrusted by the person seised, to manage the land leased to him for the benefit of the owner, and to have a .•share of the profits thereof, and might be cutout of his term, before the statute, by a fine or recovery.
    Where there, was lessee for years rendering rent of lands in Lincolnshire, the grantee of the reversion brought covenant in London for non-payment of rent. It was objected that although the statute gives covenant, yet it was local. It was determined by the Court that the action was well brought, and they declared that the statute expressly puts the gVantee in the same light as the lessor, and the diversity between debt and covenant was observed, and it was agreed that if the lessor grants his reversion and the assignee the term, yet covenant lies. 1 Sid. 401, This is a case in point. In the case of Walker v. Reeves, an action was brought by the grantee of the reversion against the. assignee in covenant for rent, and it was not there contend ed but the action would lie if a privity of contract had remained in assignee. Doug. 444.
    In Cro. Jac. 322. which . same case is undetermined in Popharn, 137. Sir J. Brett, assignee of the Queen, granted the reversion, and action was by the grantee. See the same case more largely in Godbolt. The second question was, whether the assignee of the reversion should resort to the executor of the lessee. It was resolved he should be chargeable ; for if it is a covenant which runs with the land, the lessee is always chargeable, and by the statute the grantee has the same right. The privity of action is transferred. 2 Saund. 237. Vent. 10. where it is not disputed, but an action lies. It lies by grantee of conusee, to whom no attornment was made against assignee who attorned to grantee. 5 Co. 113. a,
    I come now to shew that the devisee of the reversion is ■entitled to all the benefit of the conditions and covenants expressly entered into by the lessee.
    When the statute of uses, 27 Hen. VIII. was made, which transferred the uses into possession, it soon became necessary to introduce the statute of wills, so called, the 32 Hen. VIII. c. ., whereby all persons were enabled to dispose of their lands by their wills, to any persons who could legally take the same. A will of lands under the statute has been always sinee considered by the courts of law, not so much in the nature of a testament as of a conveyance, declaring the uses to which the land shall be subject ; and upon this notion, that a devise is merely a species of conveyance, is founded this distinction between such devises and testaments of personal c .dels, that the latter will operate upon whatever the testator dies possessed of, the former only upon such real estates as were Ms at the time of executing his will. 2 Black. Comm. 378.
    In 2 Black. Comm. 501. devises of lands are said to be conveyances by statute. 1 Wms. 78. It is a declaration oí the use, and the devisee is put in the place of the heir at law by the statute. The devisee comes in by the act and limitation of the testator by virtue of the statute of 32 Hen. VIII. c. 34. Co. Litt. 215. Moore, 98. 4 Leon. 27. 29. 1 Bar. 538. in notes.
    
    At the time when the statute of wills was made, and ever since, almost all the lands in England were let out ou leases to tenants, many of them for long terms of years, and in no single instance has it been denied but that the devise»: is the grantee of the reversion. A. devises to B. for years, rendering rent upon condition to re-enter for non-payment, and after devises the reversion in fee to another and dies; the devisee may take advantage of the condition, though there never was any reversion in the devisor. 2 Leon. 33. Here the right of entering for a condition not performed is acknowledged to a devisee of the reversion under the statute, which shews clearly, that the courts of law' have always considered the devisee to be included'in the statute 32 Hen. VIII. c. 34. as grantee of the reversion.
    If the devisee of a real estate was not, under the statute, to have the benefit of the privity of a contract, all the leases in England would soon have been at an end, and the lessees only hold the lands until they had destroyed them, and then return them to the landlord, or transfer them to any insolvent person. This would be a doctrine which would well suit some late speculators in lands and lots, but would be subversive of the end and meaning of the statute of wills, contrary to common sense and common honesty.
    In Lill. Ent. 131. there is covenant by a devisee against; the assignee of a term. The same by assignee of the reversion in covenant for rent. Carth. 289, 290. Midgley & Gilbert v. Lovelace.
    
    In 1- Bac. S39. A. demised a house for a term of years to B., who assigned to f. S. The lessor devised one moiety of the reversion to C. and the other to D. who granted the reversion to J. JD., after which C. and D. brought covenant against J. S. for rent due before the assignment by them : and it was held, first, that C. and D. being tenants in com mon, may, at their election, join or sever as well in debt as in covenant for rent; but if they sever, they must not each of them make his demand of such a certain sum which amounts to a moiety; but the demand must be of one moiety of the whole rent; and if they can count in debt they may in covenant, and if debt will lie, d fortiori covenant.
    
      Secondly. That this action is maintainable for the arrears of the rent, notwithstanding the reversion was out of the plaintiff; for though the defendant was but assignee of .the term, yet the very privity of contract was transferred by the statute 32 Hen. VIII. c. 34. which gives the action for and against assignees; and the contract still remains though the privity of estate is gone. The assignee shall have it, as a fruit fallen from the reversion. At common lawr after assignment, the assignor might bring debt for rent before an arrear: but his power over the land being gone, he could ,. , . not distrain or bring waste.
    This case shews clearly that the devisee is considered as the grantee of the reversion, under the statute of 32 Hen. VIII. c« 34. That the privity of contract is transferred thereby, and that it still remains though the privity of estate is gone; and therefore the devisee, as grantee of the reversion, may well bring covenant against any persons, either lessee or assignee, for the breach of any covenant or agreement contained in the leases, as the lessors or grantors might have done at any time. See the case in Godbolt, 161., where the devisee of the reversion of a term brought, covenant against assignee of an under lessee, and adjudged that the action lay by the statute of Hen. Vill. See the case at large.
    When the above cases are attended to, it must evidently appear that the judgment in the county court is erroneous. ‘It says that an action of covenaut for the payment of rent must be maintained on the privity of estate, whereas the above-mentioned authorities are, that it lies on the privity of contract, though the privity of estate is gone.
    Upon the whole, as it appears from the above cases that the action of covenant well lies by the lessor against the lessee on the privity of contract, after the assignment and acceptance of rent from the assignee ; as it also appears that the grantee of the reversion under the statute has the same right in him that the grantor had, and the privity of contract is transferred thereby to him, and still remains ; and as it also appears that the devisee by will is in the same situation as the grantee of the reversion under the statute, and the devise is considered as a conveyance by statute, and that the privity of contract is transferred to him and still remains, though the privity of estate is gone, I hope there will remain no doubt but that the said judgment is erroneous, and that it will he reversed, and a judgment given for the plaintiifin error for the sum of 33/. 1 is. 8d. current money, being 20/. 11». sterling money, due by the covenant in the said lease, as appears by the narr. and interest thereon, from the time due, with the costs of suit.
    By 2 Saund. 107. 5 Com. Dig. 164. if there be judgment by default or confession, and a certainty of the demand appears on record, the court may assess damages; so if there, there be judgment for the plaintiff on demurrer, as is the usual course in debt. 1 Roll. 179. 15. 2 Saund. 107. though it be debt on judgment.
    On judgment affirmed on a writ of error, a writ of inquiry may issue if it would lie on the first judgment. Prov Reg. 559.
    
    If the defendant has judgment against him by nil elicit.. confession, or demurrer, a writ of inquiry may be awarded to inquire of the damages. 5 Com. Dig. 1 Saund. 47. Wheie the plaintiff brings error, and the court reverses the judgment, they should give him a new judgment; other wise if brought by defendant. Salk. 263.
    Martin, (Attorney-General,) and A. Johnston, also for appellant.
    
      R. Ridgely and D. M‘Mechen, for the appellee.
   The General Court reversed the judgment of the County-Court, and gave judgment for 41/. 12s. 8d 1-4. current money, damages and costs, and the appellee appealed to the Court of Appeals; and at June term, 1791, the Court of Appeals affirmed the judgment of the General Court, reversing the judgment of the County Court, and assessed additional damages by way of interest.  