
    * Joseph Goodwin and Another versus Samuel Gilbert and Another.
    W here land is conveyed by deed poll, and the grantee enters under the deed, certain duties being reserved to be performed, as no action lies against the grantee on the deed, the grantor may maintain assumpsit for the non-perform-once of the duties reserved; and the promise, being raised by the law, is not within the statute of frauds.
    This was an action of assumpsit, in which the plaintiffs set forth ■ an indenture of a lease for six years, made on the 18th of January, 1809, by one Andrew Dexter, Jun., to William, Hamilton, of a certain messuage in Boston, called the Exchange Coffee-House, and sundry articles of furniture, and other personal property ;—another indenture between the same parties, made on the 5th of May following, making some alterations in the rent reserved, and the mode of payment; — an indenture made on the 6th of the same May, between the said Dexter and one George Odiorne, by which the said Dexter assigned to the said Odiorne the rents reserved in the said lease, with a power of attorney to receive the same in trust, to pay the several sums due from the said Dexter tb certain of his creditors therein named, and with condition to be void as soon as the said Odiorne should receive a sum sufficient to pay those debts ; — another indenture, of four parts, made on the 23d of June following, between the plaintiffs and the said Dexter, Odiorne, and Hamilton, by which all the three last-named parties assigned all their respective interests in the said premises to the plaintiffs, and the said Dexter also made certain covenants with the plaintiffs, and for their benefit, which are set forth, and by which same indenture the plaintiffs covenanted with the said Odiorne to pay him 12,500 dollars in one year, and another like sum in two years, with interest, in trust for the before-mentioned creditors of the said Dexter. The plaintiffs then allege that, on the 4th of September in the same year, in consideration that they, by their deed poll of that date, assigned and conveyed to the defendants the last-mentioned indenture, which was annexed to the deed poll, and all the said furniture and personal property, and the residue of said term, with all the rights and interests created, or secured to the * plaintiffs, by the same indenture, the defendants promised the plaintiffs to pay the said Odiorne the said two sums of 12,500 dollars each, and interest, in manner above mentioned, and to do every thing which the plaintiffs were bound to do by force of said indenture, in like manner as if they, the defendants, had been originally parties thereto in the place and stead of the plaintiffs.
    
      The cause was tried upon the general issue, at the last November term in this county, before the Chief Justice; and, at the trial, the plaintiffs offered to prove the several deeds set forth in the declaration, which evidence was objected to by the defendants, but admitted by the judge, and the said deeds were accordingly read to the jury. It was admitted that the defendants took possession of the premises, in virtue of the said conveyance made to them on the 4th of September. The plaintiffs contended that this evidence was sufficient to prove the promise set forth in the declaration ; but they further offered two depositions of one E. Centre, to prove an express agreement of the defendants to the same effect; which evidence was objected to by the defendants, and rejected by the judge.
    The defendants offered in evidence a deed of release from said Dexter to said Goodwin, dated August 7, 1809, and a deed of release from said Goodwin to the defendants, dated November 18, 1809, both which were read to the jury.
    A verdict was taken for the defendants, subject to the opinion of the Court; and if the Court should be of opinion that the said evidence, consisting of the deeds aforesaid, produced by the plaintiffs, was admissible, and that this, together with the possession taken by the defendants, was competent to maintain the issue on the part of the plaintiffs, the verdict was to be set aside, and a verdict entered for the plaintiffs for the sum of 15,109 dollars; otherwise, the verdict was to stand, and judgment be entered accordingly; unless the Court should be of opinion that the said two depositions of E. Centre, offered by the * plaintiffs, were improperly rejected on the trial; in which latter case the verdict was to be set aside, and a new trial granted.
    The cause was argued by Dexter and Jackson for the plaintiffs, and by Otis and Sullivan for the defendants.
    
      For the plaintiffs,
    
    it was insisted that the defendants, by accepting the conveyance made to them by the deed poll of the plaintiffs, witnessed by their taking possession of the premises conveyed, assented to the terms of the conveyance, and so undertook to do all that the plaintiffs were bound to do; they took the premises subject to all the duties and obligations of the plaintiffs. Upon another construction, they get the benefit of the estate without the consideration which was contemplated by the parties to the transaction.
    This was in the nature of a trust; and nothing is more clear than that a breach of trust may be the ground of an assumpsit. 
       There are many cases which show that a grantor may derive rights against his grantee.  The case of rent reserved is the most common: and the reservation is confirmed by the grantee’s acceptance of the grant, without words of his importing a grant of the rent.  Nor is there a difference between the reservation of an annual rent and a sum in gross. The same reason applies to all the cases,—that whoever claims an estate under any deed, ought, in reason and equity, to be obliged to take it under the terms expressed in the deed.  On the same principle, where land is devised subject to the payment of a legacy, the legatee has his action of debt against the devisee of the land, although no privity exists between them; merely on the implied contract, that, if the devisee takes the land, he will fulfil the terms on which it was given him.
    
      For the defendants,
    
    it was said that no action of assumpsit could be maintained against the grantee of land, claiming under a deed poll, by the grantor, for the non-performance of any trust created by such deed; and if there are cases in which such an action may be supported, the evidence in the case at bar will not maintain the present action.
    * Whenever an action is founded upon a deed, the deed must be declared on.  There is no precedent of such an action as the present. In all the authorities cited in support of it, there existed a moral obligation, furnishing the ground of action, independently of the deed; whereas the duty in this case could not exist without the deed.
    But if, notwithstanding the general principle, such an action could in any casé be maintained, the evidence in this case is incompetent. T?he deed shows no obligation on the defendants to pay this money to Odiorne. It is a conveyance of property, “ subject to all the obligations, conditions, and reservations,” mentioned in a former deed of the same property to the plaintiffs. The words necessarily relate to the thing or property conveyed. They could not have the effect to convey to the defendants the covenant, by which the plaintiffs were bound to Odiorne. The plain intent of the parties was to pass the property, with such encumbrances as were attached to it, but not the personal covenants of the plaintiffs. As Odiorne’s rights against the plaintiffs continued, being neither extinguished nor suspended, there was no consideration for any supposed engagement of the defendants. The obligation of the plaintiffs to Odiorne was a mere liability, which they may never meet, as the creditors of Dexter may receive their demands from some other source,- or may release; and thus the plaintiffs would acquire this money for nothing. All the ground of action they can pretend to is for an indemnity; and such action does not lie until tite party is damnified.
    This is a promise to pay the debt of another, and there is no memorandum in writing signed by the party to be charged; and it is thus within the statute of frauds.  It is true the promise is to the debtor instead of the creditor; but it is within the letter of the statute, and the mischief as great as if made to the creditor. It is also an agreement concerning an interest in lands, and, not being in writing, is void by the statute of 1783, c. 37, <§> 2.
    
    
      
       5 D. & E. 603, Smith vs. Jameson. — Fitz. Abr. Det. 68.
    
    
      
       2 Comyns on Cont. 534, cites Plowd 140.
    
    
      
      
        Co. Lit. 143, b, 47. — Plowd. 134.
    
    
      
      
        Bac. Abr. Annuity, A.
      
    
    
      
      
        5 B. & P. 104. —2 Atk. 611.
    
    
      
      
        Stat. 1788, c. lb.
    
   * By the Court.

The principal question in this case is, whether, if one grant lands to another by deed poll, with a reservation of certain duties to be performed by the grantee for the benefit of the grantor, this latter may have assumpsit against the grantee upon his non-performance? It has long been settled that an action lies for rent reserved upon a deed poll. The reason of the principle has a general application; and we are all satisfied that, as a general rule, where land is conveyed by deed poll, and the grantee enters under the deed, certain duties being reserved to be performed, as no action lies against the grantee on the deed, the grantor may maintain assumpsit for the non-performance of the duties reserved. '

It was objected that this was an agreement concerning an inter est in lands, and that, no memorandum being signed by the party, the case was within the statute of frauds. But where the law raises the promise, it is not within the statute, The same answer may be made to the objection that it was a promise to pay the debt of another, and not in writing.

The verdict is to be set aside, and a verdict entered for the plaintiffs for the sum mentioned in the judge’s report of the trial, on which judgment is rendered. 
      
      
         [Jackson, ex Dem. Benson, vs. Matsdorf, 11 Johns. 91.—Jackson, ex Dem. Whitlock, vs. Mills, 13 Johns. 463.—Jackson, ex Dem. Seelye, vs. Morse, 16 Johns. 197. — Allen vs. Pryor, 3 Marsh. 306.— Hills vs. Elliott, 12 Mass. Rep. 26. — Fletcher vs. M'Farlane, 12 Mass. Rep. 46. — But see Black vs. Black, 4 Pick. 234. — Boyd vs. Stone, 11 Mass. Rep. 342 — Quære, whether covenant can be brought, in any case, against a person who has not become a party to the deed by signing and sealing ? Platt, 10 — 18. Vivian vs Arthur, 1 B. & Cr. 410. — Seddon vs. Senate, 13 East, 63. — Harper vs. Burgh, 2 Leo. 306.—4 Cruise, 393, 3d ed. — Com. Dig. Cov. A. I,— Vin. Abr. Con. (I. a. 2.) — Dyer, 136, pl. 66. — 2 Rolle, Rep. 63. — Buls. 164. 1 Rolle, Rep. 359 — 63. — Co. Lit. 230, note (1), by Thomas, vol. ii. 229. — Burnett vs. Lynch, 5 B. & Cr. 596 —Lock vs. Wright, 571. —Ed.]
     