Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-03-13
DECISIONS oF THE sUpKEmE COURT.
OFFICIAL.


OFFICIAL
Decisions OF the Supreme Court of tho
state of Tennessee. az Knsxvilles Sep-
TENDER Terms 1850.
John Brooks Vim. Smith.
Action of covenant by the purchaser of lessor
against the assgner of the lessees. Demurrer to the
declaration sustained by the Circuit Judge, and
appeal in error.
The case made in the declaration is that PARROT
Goodwin being the owner of tract of land in Grain
ger county entered into and executed certain articles
of agreemen under seal with Ryons and Covinger of
which prafert is made by which she leased to them
for the term Of five years from the lst of January,
1854, lot of ground-part and parcel of said tract
| Of land" By which articles they bound themselves
to build upon said lot shop of dimensions and
description therein set forth, and to furnish the
same with turning lathes grind stone water works,
&c. They were to have the privilege Of water,
timber, &C., necessary for the work. 1t is also
provided that the lessees were to do all
the blacksmith work of the lessor, he fur
nishing the iron during the term. On his
part the said Goodwin, for the work and
buildings coyenanted, that the said Ryons and
Cloyinger should have the use Of the said shop and
all the machinery belonging thereto, the two small
houses then occupied by them, with the cleared land
around them With the privilege to use rewood from
God wins land during the terul.D They were also
to have the privilege Of taking timber enough to
build frame house and have the use Of it, but they
we've to cut no timber that would make plank, ex-
| cept for the erection of SAID building" And the
said Ryons and Clovinger further bound themselves
to deliver to Goodwin at the end of the term 'al the
said houses and the shop and all the tools that may
| be used in said shop, except such as are used in
| common Blacksmith Shops, in good condition ex-
| cept the wear of the same For breach of these
covenants by either he to forfeit to the other
! 500 and all damages
| 1t is further ayeEred that afserWaPds an the -
day of - les the said Goodwin sold and con-
IeYed in full to the plaintiffs the said tract of land,
| part of which he had leased as aforesaid 10 the
said Ryoas and CoyingeF, the said sale and convey
ance being made before the expiration of the said
lease ana before the breach of the said covenants.
| And before the breach the said "Ryon and CLOWN
ger assigned their said lease to the defendant who
| took possession of said land so leased"
| The breaches assigned in the declaration, are.
| l. The said shop and houses were net built.
! 2. The machinery was not pat UP, and the 'Qrind=
g:oneg and Turning Lathes we're not constructed
8. The work of the plaintiff was not done in said
shop, though requested by him.
4. The premises, the houses and shop and the tools
were not surrendered in good condition on the first
January 1859.
| 5. The defendant did cut and use timber on said
land suitable for making plank for other purposes
and uses than making said houses,
The parties to this suit are Aat ta Parties TO the
covenant but according to the syerments of the
declaration, the plsihhH is the purchaser by con-
Yeyance in fee of the reyersion and the defendant
the assignee of the lease. There is no pFivity be-
tween the parties, The lease exhibited, but not the
assignments OF either the reversion or lease.
The lease of which profert is made has no
assignment upon it, nor is it ayerred that there
was written assignment but barely that it was
assigned to, and possession taken'by the defendant
The lease does not expressly embrace the-assign-
ment of the parties This suit cannot be maintains
ed unless the covenants are ouch as to run with the
land, or 'tcuch and concern the estate as there is
no priYity between the parties:
BY the common Law for the want Of priYity, and
because covenants run with the land but not with
the Tsvss;on, covenant could not be brought by the
assignee of the reverson, and to remedy the act OF
81 and were passed.
After reciting that, "by the common law ne
stranger to any covenant could take advantage
thereof, but only such as were parties or pTivie3
thereto it gives reciprocal schpA 10 and against
the G9sigee2 Of both parties TO lease This statute
though general in its terms. and would seem to en-
brace al c0ueTdFeg that might be contained in a
lease was easily construed 70 apply only to such
as touch aud eaaperA" tae thing demsed and not
collateral covenants, Coke. ID, "Spencer's case'
brought into Smiths leading cases, 22 Margin
Breane va. Dickinson, 2 Hemisph. l28.
The only difficulty now, is to determine whethe
particular covenent touches and concerned" ths
thing deulised OF not, in the lead;nc aase II wal
held, that covenant to bud brick wall upon the
demised priMises did not and the assignee of the
leszse Wss not liable unless the covenant in the
Lease expressly embraced him. But even thai
would not bindEhe assignee if the covneaut had beer
to build a wall house any where else, fer that
would be merely collateral to the land and does not
touch or concern the thing demised See second
ResoAt on in spencers case.
Ihe doctrine of that and perhaps all other cases
is, that covenant to do something to thing in ex
stanee at the time, As to repair the houses, cult
yate the land 10 particular manner, to reside on
the premises, to let the lessee have free
certain in the house &c runs with the land and
binds the assignee, without the word assigns;
k.~k. - ~ ~
such a house, shop machinery or wall that does
not bind the assignees, unless they expressly
named. Addison on Cents 49, The last is the case
before us
In Shelly VS.. Heam Yerg 5l2-lE. A covenant
to occupy and leave the premises in tepantaRle re
pair after the expiration of the terra was held, to
run with the land ip favor of the assignee of the
reyersion But in such case the breach must occur
after the assignment for if it were before the latter
cannot sue.
In Heam vs. Dickinson Hump. 1850, the court
decided that covenant on the part of the lessor,
to pay for such improvements might be made by
the lessee did not with the land, reversion,
so to make the assignor of the liable to the
assignee of the lessee. These are the only cases
we have on the subject,
According to the pr;neipies, independent of the
fmperfeetions alleged to exist in the declaration il
will be seen that the plaintiffs assignee of the
lessor, cannot maintain this action upon the cove
nants in this lease and the breaches set forth against
the defendant assignee of the lessees so far as
the three first breaches are concerned. 1t would be
otherwise, perhaps # the lease had expressly ex-
tended to and bound the assigners. He must look
to Ryon and Coyinger, the eovenantors, as to them
The Judgment sustaining the demand would he
affirmed as to those covenants and breaches if the
4 demurrer had been specially confined to them. But
it is general to the whole declaration, and cannot be
sustained in part l Chits Pl. 663-4. The stipula-
tons in the covenant upon which the two last
breaches are assigned such run with the land
and upon which the assignee of the lessee of may be
made liable to the extent of the damages sustained
if any can be shown to have resulted TO the plaintiff
from the acts Of This defendant after the assignment
of the lease to bin.
IkEay lie remarked, also. that this demurrer being
general and not setting forth the particular obIee-
tons relied upon, it does not conform to the require
ments of the Code. Sec 2a34, and he Of no avail
to the defendant if good cause of action is shown
in the declaration, though impeFfectly stated That
section aboliEhes general demurers. and requires
that the ground of the demurrer shall be specially
stated Without this the demurrer can answer no
other purpose than to stand as motion to dismiss.
Judgment reversed, and cause remanded for fur
| Their proceedings CARUrHERs.
A true copy Test W. R. CAswEIL, CLERK.