
    *Demarest against Willard, executor of Willard,
    COVENANT on ajease, tried at the Saratoga circuit, ISTo28th, 1826, bbfore Walworth, C. Judge,
    ^ tria] the following matters were in evidence: the plaintiff by lease under seal, dated March 29th, 1819, demised a house and lot to the defendant’s testator, for two years from the 1st of May, then next, at an annual rent of 600 dollars payable quarterly. The lessee covenanted to pay the rent, and that no alterations, &c,, should be made in the house, or any nails or wooden pins driven into the floors, walls or ceilings, or any damage done, during the term; and that he would deliver up the premises in the same repair at the end of the term, as at the date of the lease, all reasonable wear excepted. The plaintiff claimed for rent arrear, $50 14; for injury to the house by nails, pins, &e.; and that the premises were not delivered up in good repair. Considerable damage was proved.
    
      A lessor may for rent, withsion, or the revtog^ae^rent and covenant for rent; and in the former case, the assignee may sue in his own name for rent accruing subsequent to the assignment; and the lessor may sue in his own name on the other covenants in the lease.
    A lessor for a term, with covenant by the lessee to pay rent, and covenants against certain injuries to the premises, and to surrender them in good repair at the end of the term, made an indorsement on his lease assigning the rent, and “ within lease.” Held, that no interest in the reversion passed beyond the term; and the right of action not accruing on the oovenants as to injuries and repairs, till the term had expired, and the reversion then being in the lessor, the right of action was in him; but the right of action for rent which became due and in arrear after the assignment, was in the assignee. The statute (1 R. L. 363,) respects the assignment of the reversion; not the rent without the reversion.
    Rent arrear is a chose in action, and is, therefore, not assignable so as to give an action in the name of the assignee.
    But rent yet to grow due is assignable; and a covenant to pay it runs with the land, and may pass to an assignee, who may sue upon it in his own name
    A covenant to repair runs with the land.
    
      The defence was an assignment indorsed on the lease, dated April 29th, 1819, by the lessor to one Haswell, as follows; “ For value received, I do hereby assign, transfer and set over unto John Haswell, of, &c., his heirs and assigns, the within lease, and all the rents wkich may and shall from time to time become due and payable during the term,” &c., with an authority to Haswell to collect the rents, and a covenant to ratify and confirm what he might do in the premises.
    «The judge decided that this assignment was a bar to the plaintiff’s recovery upon both branches of his claim.
    The plaintiff then proved a re-assignment from Haswell to the plaintiff, dated August 15th, 1821, thus: “ The balance of rent and interest thereon due this day, is $36 48s in consideration of which, I do hereby re-assign to Samuel Demarest, (the plaintiff,) all my right and interest of, in and to the within lease, and all the rent due and to become due thereon.”
    The judge decided that this did not revest a right of action: and non-suited the plaintiff, who excepted.
    
      J. L. Viele, for the plaintiff,
    moved to set aside the non-suit. He said the assignment passed no interest in the reversion ; but only in the rent. The reversion remaining in the plaintiff, to the time of covenant broken, he always had the sole right to an action for any injury to the inheritance. The covenant is said to run with the land; and remains with the interest in the land. Suppose the lessee had been ousted, was Haswell liable? But whatever in* terest passed to him was revested in the plaintiff by the reassignment ; and the privity of contract, between the original parties, still subsisting, the, right of action was perfect in the plaintiff. At any rate, the interest of the assignee being at an end before the covenant was broken, he could have no right of action in respect to that. The statute, (1 B. L. 363,) relative to assignees of lessors or lessees, applies only to-the assignees of reversions, and such covenants as at common law run with the land. But if this case comes within the statute, the remedy given by its being cumulative, the right to bring an action in the name of the lessor, remained as at common law, though it may have been for the benefit of the assignee. If this be not so, then we ask the benefit of the rule set up against us. If the assignment carried all rights, the re-assignment brought them back. If the statute applies to the assignee, it equally reaches the assignee of an assignee, in which character the plaintiff stands. He cited 5 Cowen, 165, 188; 3 T. R. 393 ; Bac. Abr. Covenant, *(E.) s. 6; Jac. Law Dict. Covenant, III; Chit. Pl. 111; 16 John. 159.
    
      J. Paine, contra.
    The legal right of action for breach of all the covenants, passed to Haswell, by the assignment. The full operative words were used, “ assign, transfer, and set over.” (4 Cruise’s Dig. 112.) The covenants on which the action proceeds, all run with the land, and the right of action of course follows. (4 B. & A. 468 ; 3 Wils. 29; 3 Bl. Com. 385; Com. Dig. Debt, (c), 4 Mod. 81; 3 M. & S. 382; 1 R. L. 363; 14 John. 93.) But whatever be the construction of this assignment, as to the covenants to keep in repair, it is clear the rent passed. That may be assigned without the reversion, especially since the statute, (1 R. L. 363.) (5 Jac. Law Dict. Remainder, p. 527; Com. Dig. Covenant, (B. 3,) Debt, (C.,) Grant, (C.,) Assignment, (A.) Cro. Eliz. 637, 651; 3 Salk. 118; 1 Ld. Raym. 82 ; 3 id. 88; T. Baym. 11; 1 Lev. 22.) It will be found that the reversion also passed under the statute. Beversion does not necessarily mean all the interest of the lessor. It may be that part of his interest which is co-extensive with the term. (5 Jac. L. Dict. Reversion, p. 526 ; 4 Cruis. Dig. 111; Co. Lit. 215, a.) The counsel stated the case of Litilewood v. Jaclcson, decided by this court in 1820, which will be found noticed at large in the opinion of the court; and relied upon it as one in point for the defendant. As to what covenants run with the land, he cited Com. Dig. Covenant, (B. 3;) Cro. Eliz. 599.
    The re-assignment can have no greater effect, being to the lessor, than if it had been an assignment to a third person. It would make an assignee; but the plaintiff does not claim in that character. He sues as lessor. Beside, all the breaches happened before the re-assignment. The claim upon the covenants were thus turned into choses in action, and could not pass by assignment. (Jac. Law Diet. Assignment. Oro. Eliz. 863.)
    Viele, in reply, did not deny that a part of that lessor’s reversion might be assigned; but insisted that here was *no intention manifested by the assignment, to pass' any part of it. It is a mere assignment of the rent, which, indeed, not being separable from the reversion, no more than an equitable interest passed; and the action must be in the lessor’s name. But if these covenants all passed, it follows that they were re-assigned. It is no answer to say they were broken. They are confessedly covenants of a nature which run with the land. Such never become choses in action; or if they do, they are expressly made assignable by the statute. That reaches all covenants between lessor and lessee whether broken or not, whether they run with the land or are collateral.
   Curia, per SAVAGE, Oh. J.

The question to be decided is, whether the plaintiff has a right to maintain an action in his own name, either on the covenant to pay rent, or the covenant to surrender the premises in good repair at the end of the term.

To ascertain the rights of the parties, it is necessary to examine the assignment to Haswell; and see what was conveyed to him. The plaintiff assigned the lease of Willard, and all the rents to become due during the term. No interest in the premises leased, except the rent issuing from them, is contained in this assignment. The reversion is not conveyed in terms, nor can it be by implication. When rent is reserved, it is incident, though not inseparably so, to the reversion. (Co. Litt. 143.) The rent may be granted away, reserving the reversion ; and the reversion may be granted away, reserving the rent, by special words. By a general grant of the reversion, the rent will pass with it as incident to it; but by a genéral grant of the rent, the reversion will not pass. The incident passes by the grant of the principal; but not e converso. (Co. Litt. 151; 2 Jac. L. D. Reversion.) The assignment to Haswell did not convey the reversion; and it, of course, remained in the plaintiff. It was perfectly within the power of the plaintiff to have assigned the rent to one, and the reversion to another; but he conveyed nothing beside the rent, unless something more passed by *the words, “ the within lease.” It cannot be contended, that these words conveyed the fee of the house and lot. If anything was intended more than the instrument itself, it must be the plaintiff’s interest in the premises during the term. But until the term was ended, the lessee could not be called upon to surrender the possession of the premises in good repair. All the interest and authority of the plaintiff during the term was to collect the rent. Authority for this purpose was given to Haswell by the assignment ; but it is altogether silent as to transferring any right to damages, which the plaintiff might be entitled to by reason of a breach of the other covenants in the lease.

That the right to prosecute upon a covenant to leave the premises in' repair, belongs to the assignee of the reversion, was decided in the case of Matures v. Westwood, (Cro. Eliz. 599, 617.) But there is a great difference between an assignee of the reversion, and an assignee of the rent. By an assignment, the assignor parts with his whole interest in the thing assigned; and puts the- assignee in his place. (4 Cruise, 111.) There is no doubt of the correctness of this rule; but the question still recurs, what was the thing assigned ? I am satisfied, and have endeavored to show, that nothing but the rent was- assigned. Our statute to enable grantees of reversions to take advantage of conditions to be performed by lessees, which is substantially a copy of the 33 Henry 8, ch. 34, relates solely to' grantees of reversions; and as the reversion has never been granted in this case, the statute has no application. That the assignee can take advantage of all covenants which run with the land, is perfectly settled, but not of such as are collateral. Glover v. Cope, (4 Mod. 81,) a case'undér the statute, decided that the assignee of the' reversion might sue the lessee. The same point was' held in Bally v. Wells, (3 Wils. 29;) and that on a covenant which runs and rests with the lands, an action lies for or against the assignee at the common’ law, although the assignees are not named in the covenant; quia transit terra cüm onere. And it was held that a ^covenant to repair is one which concerns the land, and runs with it. I agree, therefore, that if the reversion had been assigned to Haswell, this action could not be maintained ; but we are constantly brought back to the assignment.

Littlewood v. Jackson, decided by this court, May term, 1820, is supposed to control this case. One Bailey had a term of 1590 years; and he demised to the defendant 1550 years of his term, reserving a rent of £12 15s. Qd. After-wards Bailey assigned to the plaintiff the rent and all remedies for its collection, and all the estate, &c., claim and demand of Baily to the rent, to have "and to hold for the 1550 years. After the plaintiff became entitled to the rent, £118 3s. 5d., being rent for 9"years and 3 quarters, fell due and was in arrear. The verdict being for the plaintiff, the defendant moved in arrest of judgment, on the ground that the plaintiff had not alleged that he ‘was the assignee of the reversion: But the court denied the motion. As I understand this-case, it decides that the assignee of the rent may recover it'‘in that character, without being assignee of the reversion. It is an authority to show that Haswell might sue for and recover the rent in arrear; and consequently the plaintiff cannot; but it proves nothing as to the other covenants in the lease.

The re-assignment by Haswell to the plaintiff, was perfectly useless in respect to the maintaining of this suit. Arrears of rent are a chose in action ; and not assignable like accruing rent. Haswell was assignee of the rent; and the whole became due before the re-assignment. If the plaintiff can recover the arrears, it must be in the name of Haswell.

My conclusion is, 1. That the rents were assigned to Haswell; but not the reversionary interest in the premises; that the plaintiff, therefore, cannot recover, in this action, the arrears of rent; and 2. That the reversion having always remained in the plaintiff, and the covenant to surrender up the premises in good repair not being broken until the term ended, no one but the owner of the reversion can prosecute for the breach of that covenant; that, consequently, the plaintiff is entitled to recover upon *the breach of that covenant; and for the injury generally done to the freehold.

The non-suit must be set aside; and a new trial granted, with costs to abide the event.

Eule accordingly.  