On Covenants running with land, It should be observed, that the statute has no effect on covenants which are collateral to, and do not run with the land. Upon such covenants the grantee of the reversion cannot maintain an action in his own name.45 The devisee of an equitable estate cannot be charged as assignee.46 The assignee of a rent charge is not within the statute; for a covenant cannot run with a rent, nor is there any reversion.47 Neither does the statute extend to reversions upon estates tail; for the word lessee is used, and a tenant in tail is not a lessee within the meaning of the statute.48 After the grant of the reversion, the grantor cannot sue for breaches of covenant subsequently committed by the lessee, or his assignee.4 And as a chose in action is not transferable at law, the remedy for breaches of covenant, which occurred before the grant of the reversion, must, necessarily, be enforced in the name of the grantor.50 Rent, accrued and due before a conveyance of the reversion, will not pass to the grantee, but is severed from the inheritance; and the assignment of such rent to the grantee of the reversion, will not authorize him to sue in his own name.51 But for rents which accrue after the owner has conveyed the land, the grantee of the reversion may sue in his own name, and that too, without attornment by the tenant.52 (45) 5 Co. 17; Co. Litt. 215, b.; 8 Eng. C. L. Rep. 113. As to what covenants, other than those usually contained in deeds of conveyance, do run with the land, see 7 Eng. C. L. Rep. 1; Comyns. Dig. Covenant, (B. 3); 4 Kent's Com. 4th ed. 473, 474; and especially 17 Wend. 136, where this subject is very ably discussed, and the English cases reviewed. See also 2 Yeates 74; 6 Yerg. 512; 5 Conn. 497; 1 Dall. 210; 1 Wash. C. C. Rep. 375; 3 Rand. 394; 8 Pick. 547; 6 Verm. 276; 8 Cowen 206. 266; 4 Paige 510; 6 Gill & Johns. 372; 6 Cowen 302; 16 Pick. 183; 9 Verm. 191; 2 Blackf. 301; 4 Verm. 71; 16 Pick. 68; 1 Dev. Eq. Rep. 30; 2 Hill, N. Y., 274; 19 Pick. 476. 449. 459; 23 Wend. 506. The general rule seems to be, that to render a covenant available to the assignee of the lease, it must be touching or concerning the thing demised, or affecting the value of the reversion, or the term, or influencing the rent. To make a covenant run with the land, there must be a subsisting privity of estate between the covenanting parties; and such are covchants to pay rent, to produce title deeds, or for renewal, or concerning title. And the true test, whether the covenant be collateral or not, is this: If the performance of the covenant be beneficial to the reversioner, in respect of the lessor's demand, and to no other person, his assignee may sue upon it; but if it be beneficial to the lessor, without regard to his continuing owner of the estate, it is a mere collateral covenant, upon which the assignee cannot sue. Platt on Cov. 234; per BEST, J., 8 Eng. C. L. Rep. 115. (46) 8 East, 487. (47) 5 M. & S. 411. (49) 3 T. R. 394, arg.; 12 Mod. 45; 3 Met. 76. A. conveyed a mill to B., and covenanted with him, his heirs and assigns, to keep one half the milldam in repair. The dam was afterwards carried away by a flood, and B., after having duly requested A. to aid him in rebuilding it, conveyed the mill, with the privileges, &c., to C., who, at the same time, agreed, in writing, that B. should "have all that should be obtained of A. for nonfulfilment of his contract, provided A. should not assist B. in erecting the dam, and B. should be compelled to rebuild it without A.'s assistance." A. afterwards refused to assist in repairing the dam, and B. repaired it, at his own expense. The court, in this case, recognized the general principle stated in the text, but held that the contract, authorizing B. to receive to his own use what might be recovered from B. for not fulfiling the covenant, took the case out of that general rule, and they, consequently, held, that B. might maintain an action, in his own name, against A., for a breach of the covenant to keep the dam in repair. 2 Met. 615. (50) 8 Cowen. 206; 4 M. & S. 56; Cro. Eliz. 863; see ante p. 35, 48. (51) 3 Met. 76. (52) 1 T. R. 378. In the case of Bender v. Thayer et al. 3 Met. 76, it was held, that where the owner of land which he has leased for years, mortgages the reversion, the mortgagee is enti Executors-Administrators-Heirs. 14. Executors, administrators, heirs, &c. In the case of a mere personal contract, or of a covenant not running with land, if it were made only with one person, and he be dead, the action for the breach of it, must be brought in the name of his executor or administrator, in whom the legal interest, in such contract, is vested.55 So far as regards a covenant of seizin, and power to convey, if the grantor was not seized, either in law or in deed, at the time of conveying, the covenant is, as we have before seen,58 broken when made, and becomes a mere chose in action, and no longer annexed to, or passing with, the land. When, therefore, the land is vacant, and the grantor has no title, the executor or administrator of the grantee must sue on the covenant. But when the grantor is, at the time of the conveyance, in possession, claiming a fee, the covenant of seizin, like the other common covenants in deeds of conveyance, which run with the land, such as the covenant of warranty, is a real covenant, annexed to the land, and passes with it, to the heir, or assignee, until he who has the paramount title, asserts it, and evicts the person in possession, when it becomes a mere claim to damages, to be enforced by the person who has been evicted, or by his executor or administrator, and is no longer assignable in law,59 In like manner, the covenant against incumbrances runs with the land, while the title remains undisturbed.60 When these covenants which run with the land are broken, they lose their transmissible character, and become mere choses in action. If broken in the lifetime of the ancestor, they descend not to the heir, but must be sued by the executor or administrator. If broken afterwards, the heir or devisee, in whose time there is a breach, should sue.61 The English rule seems to be, that on a covenant relating to the realty, as for good title in a deed of conveyance, an executor cannot sue, even for a breach in the lifetime of his testator, unless the breach occasioned some actual damage to the personal estate of the latter, but the action must be brought in the name of the heir or devisee.62 Distributees must separately sue for their share in the estate.63 The executor or administrator may maintain an action, on an express covenant, for rent accruing and due during the lifetime of the decedent; but the heirs must sue for rent which becomes due afterwards.64 tled to all rents that subsequently become due, and may maintain an action against the lessee to recover them. It may be doubted whether, in this State, the mortgagee would be entitled to the rents until the defeasance in the mortgage deed became absolute. See 2 Ohio Rep. 223, 224. (55) 3 T. R. 393, 401; 3 Ohio Rep. 211. (58) See ante p. 46. (61) 10 Ohio Rep. 444; 21 Wend. 120; 3 Ohio Rep. 211; Comyns. Dig. Covenant, (B. 1); see 5 Conn. 497; 1 M. & Sel. 355; 4 M. & Sel. 53, 183; 1 Eng. C. L. Rep. 159; Platt on Cov. 526; Cro. Eliz. 863; 2 Johns. 1; 4 Johns. 72; 2 Mass. 443, 445; 17 Mass. 586; 3 Met. 390; 3 Monr. 94; 6 Ib. 40; 3 Dev. 200; 12 S. & R. 131. (62) 1 M. & S. 355; 1 Eng. C. L. Rep. 159; 4 (59) 3 Ohio Rep. 211; 3 Mour. 94; 2 Bibb. 170; M. & S. 53, 188; 6 Eng. C. L. Rep. 34. 10 Ohio Rep. 444. (GO) 10 Ohio Rep. 317. (63) 2 Ohio, 156. As to heirs joining and sev ering, see ante p. 42, 47. (64) 2 Johns. Cas. 17. Executors-Administrators-Heirs. When, however, no estate or reversion is left in the landlord, and rent is reserved to the executors or administrators, they, and not the heirs, should sue.65 The executor of a lessee may support an action against the tenant under him, on a covenant for rent due since the death of the testator.66 An executor or administrator may sue, as such, upon a contract made with him in that character, as for goods sold by him at the administration sale, and in other cases, where the sum to be recovered would be assets.67 But the cases upon this subject cannot be reconciled. It has been held, in this State, that where a note is given to A. B., "administrator of C. D.," and A. B. dies, that the words "administrator of C. D.," may be taken as mere description of the person, and in the absence of any proof of the note having connection with the estate of C. D., the administrator de bonis non of C. D's. estate cannot maintain a suit thereon.68 to A., administrator of B., may be sued in the name of A.: in the name of A., administrator of B., and the cause of action be so stated, that it appears to have accrued to the plaintiff personally, the words, administrator of B., may be considered as surplusage.69 A note, payable and if the suit be And it seems, if an administrator change the nature of a debt originally due to the intestate, by a contract made with himself, as by taking a bond payable to himself as administrator, he must sue for the new debt in his own name, and not in his representative character.70 Under these decisions, it would seem safest not to sue, in the representative capacity, upon contracts made to executors or administrators; as they may, at any rate, sue in their individual name and right, upon contracts made directly with them, on account of the estate.71 In England, an executor derives title, not from the probate, but from the will, and hence the rule, that if there be several executors, though some be under age, or have not proved the will, they must all join in an action.72 Under our system,73 the executor derives his title and authority from the letters testamentary; whether, therefore, it would be proper for any, but such as have taken out letters testamentary, to join in an action, may admit of doubt. 74 If an executrix or administratrix marry, her representative capacity ceases. If there be another executor or administrator, he sues, as if she were dead.75 In this State, the executor of an executor has no authority, as such, to admin (65) 3 Cruise's Dig. 321. (66) 27 Eng. C. L. Rep. 292. (67) 6 East. 405; 5 Eng. C. L. Rep. 317; 1 Id. 446; 1 T. R. 487; 8 Eng. C. L. Rep. 45; 25 Id. 25; 4 Hill (N. Y.) 492; 1 Chit. Pl. 8 Am. ed. 20; 6 Ohio Rep. 94; per WRIGHT J ; 8 Wend. 530. (68) 7 Ohio Rep. (Part. 1,) 268. (69) 3 Blackf. 253; 16 Mass. 71; 1 Peters, 686; 7 Ohio (Part 1) 268; 1 Blackf. 176, 342; 1 Doug. 4 n. 1; 1 Chit. Jr. Prec. 2, (e.) (70) 2 Saund. 5 Am. ed. 117 d.; 3 B. & P. 10; (72) 5 Eng. C. L. Rep. 317; 9 Id. 369. (74) See 1 Blackf. 301. The English rule, is Husband and Wife, ister the estate of the first testator.75 And upon contracts made with a deceased executor or administrator, it will be safest to sue thereon, in the name of the executor or administrator of such deceased executor, or administrator, rather than in the name of the administrator de bonis non of the original testator or intestate.76 15. Husband and wife. The effect of marriage is to deprive the wife, in courts of law, of all separate legal existence; her husband and herself being, in law, but one person. It is, therefore, a general rule, that she cannot, during the marriage, maintain an action without her husband, either upon contracts made by her before, or after the marriage; although they may be living apart, under a formal deed of separation, and containing a provision that she may sue alone;77 or although he may have left the country and deserted her.78 A person sentenced to imprisonment for life in the penitentiary cannot, of course, be deemed dead in law.79 Where the husband has been abroad, and not heard from, for seven years, his death will be presumed.80 It is a general principle, that the husband may sue without his wife for the recovery of that which he may discharge alone, and of which he may make dis-` position to his own use.81 Chattels personal, of the wife, in possession, are, by the marriage, absolutely given to the husband, and for their recovery he may sue alone.8 82 Choses in action, or contracts made with the wife before coverture, do not, like chattels personal, vest in the husband by the marriage. They must be reduced to possession by the husband, before his death, otherwise they will survive to the wife; and, if she die before they are reduced to possession by him, her administrator must sue on them, and the heirs of the wife, and not the husband, will be entitled to them, on the distribution of her estate. 83 Where the husband and wife sold the wife's land, and a note was made to the husband and wife for the consideration money, it was held, that the right of action on the note survived to the wife on the death of the husband.84 In all actions on choses in action, due to the wife before marriage, the husband and wife must join; the rule being, that, in all cases where the cause of action by law survives to the wife, the husband cannot, in general, sue alone.85 But if, in respect of a contract made to the wife, whilst sole, the party there (75) Stat. 340, §10. (76) 7 Ohio Rep. (Part 1) 268. See 1 Chit. Pl. 8 Am. ed. 22; 6 Ohio Rep. 94 per WRIGHT J.; 4 Hill (N. Y.) 492; 15 Mass. 374; 7 T. R. 178. (77) 2 Hill (N. Y.) 260; 8 T. R. 545. (78) 11 East. 301; but see 15 Mass. 31; 6 Pick. 89; 2 Kent's Com. 4th ed. 154 to 162. As to suits by the wife whose husband is a foreigner, residing abroad, see 2 Esp. Rep. 554, 587; 1 B. & P. 357; 26 Eng. C. L. Rep. 78, note (a.) (79) 6 Johns. Ch. Rep. 118; Stat. 291, 292, §1. (80) 2 Camp. 113, 273; 1 Black. Rep. 404; 6 East. 80. (81) 1 Barn. & Ald. 224; cit. 3 Bulst. 164. (82) 3 T. R. 631; Com. Dig. Baron & Feme (E. 3.) 12 Pick. 173; 13 Mass. 334. (83) Com. Dig. Baron & Feme, E 3, F 2; 2 Kent's Com. 135; 2 Desaus. Eq. Rep. 226, note, 422, note; 3 Johns. C. Ch. Rep. 208; 5 Id. 208; Stat. 288, 10; 6 Johns. 112; 7 Conn. 429; 8 Id. 71. (84) 16 Mass. 480; 17 Mass. 57. (85) 1 Chit. Pl. 8 Am. ed. 29, and cases there cited. 13 Wend. 271; 21 Wend. 202; 10 Pick. 462; 10 Johns. 51. Husband and Wife, to, after the marriage, give a bond to the husband and wife, or in respect to some new consideration, as forbearance, &c., make a written or parol promise to the husband and wife, they may join, or the husband may sue alone, upon such new contract.86 If such bond or fresh promise be made to the husband alone, he alone can sue thereon; but they may jointly sue on the original contract, in cases where it is not merged in a higher security.87 In general, the wife cannot join in an action upon a contract made during the marriage, as for her work and labor, goods sold, or money lent by her during that time;88 for these are the husband's. But when the wife can be considered as the meritorious cause of action, as if a bond, or other contract under seal, or a promissory note, be made to her separately or with her husband;89 or if she bestow her personal labor and skill in curing a wound;90 she may join with her husband, or he may sue alone. Where the wife is joined in the action in these cases, the declaration must distinctly disclose her interest, and show in what respect she is the meritorious cause of action, either by averment, or from the nature of the contract disclosed; for there is no intendment to this effect.91 During the coverture, the husband may sue alone, or may join his wife, in all actions for rents and profits of the wife's real estate, whether the lease or demise, or other contract relating to the wife's land, were made before or during the coverture.92 She takes, by survivorship, a debt due upon a judgment recovered by husband and wife; whether obtained upon a debt due her whilst sole, or upon a contract made with her during coverture, when she is the meritorious cause of action;93 and she is entitled by survivorship to a note, bond and mortgage, made to her and her husband,94 or to her alone.95. But if the husband appoint an attorney to receive a debt due the wife, and the attorney receive it; or if he mortgage the debt, or assign it, bona fide, for a valuable consideration, or change the security to himself, or recover a judgment by suit in his own name, or release it, the husband has reduced the debt to possession, and the right of the wife, upon the decease of the husband, is gone.96 If choses in action of the wife are not thus reduced into actual possession by the husband during the lifetime of his wife, and she dies, her administrator, and not the husband, as we have already seen, must sue for them, and they will be distributed to her heirs.97 (26) 4 T. R. 616; 1 Salk. 117; 1 M. & S. 180. (87) 1 Chit. Pl. 8 Am. ed. 29. (88) Com. Dig. Baron and Feme, W.; 1 Salk. 114. (89) Stra. 230; 8 Mass. 229; 10 Johns. 49; 4 T. R. 616; 2 M. & S. 393. 395; see 16 Mass. 480. (90) Cro. Jac. 77; 2 Wils. 424. (91) 2 Blackf. Rep. 1236; 2 M. & S. 396; 3 Id. 396; 2 Caine's Rep. 221; see 39 Eng. C. L. Rep. 626. (92) 1 Chit. Pl. 8 Am. ed. 30. (93) 2 Bl. Rep. 1239; Cro. Jac. 77. 205; Co. Lit. 851, a, n. (1); 5 Johns. Ch. Rep. 208. (94) 2 P. Wms. 496; 16 Mass. 480; 2 M & S. 396, 397, n. b. (95) 1 Chit. Pl. 8 Am. ed 32; but see 12 Pick. 173. (96) 3 Johns. Ch. Rep. 208; 2 Atk. 206; 1 Fonb. 305, 306; 1 Verm. 396. (97) 6 Johns. 112; Stat. 288, §10; 2 Desaus. Eq. Rep. 226, note, 422, note; 7 Conn. 429; 8 ld. 71; Com. Dig. Baron & Feme, E. 3; F. 2; 2 Kent's Com. 135; 2 Johns. Ch. Rep. 208; 5 Id. 208. |