Wakefield had agreed to concur in the manner after Queen's Bench. expressed. It was then witnessed that, in pursuance of the agreement, and in consideration of 150l. paid by James Brown in his lifetime, and also of 100l. paid to Bingley, with the approbation of Samuel Wakefield, by Sophia Brown, and of the rents and covenants after reserved and contained, and by and on the part and behalf of the said Sophia Brown, her executors, administrators and assigns, to be paid and performed, Robert Wakefield, at and by the request and appointment of Samuel Wakefield and Benjamin Bingley, "hath demised and leased, and by these presents doth demise and lease, and the said Benjamin Bingley hath granted, demised, leased, ratified and confirmed, and by these presents doth grant, demise, lease, ratify and confirm, unto the said Sophia Brown, her executors, administrators and assigns, all" &c. (describing the dwelling houses as in the declaration, and as granted by Sutton to Bingley by indenture, dated 21st October 1826); habendum to Sophia Brown, her executors, administrators and assigns, for thirty one years from Midsummer 1826, yielding and paying, therefore, yearly and every year, during such part of the said term as the said premises shall remain subject and liable to the payment of the said annuity, unto the said Samuel Wakefield, his executors, administrators and assigns, the rent or sum of 1607. of lawful" &c., " and, from and after the repurchase, redemption or cessation of the said annuity, yielding and paying, yearly and every year, during the then residue of the said term, the like yearly rent or sum of 1607. unto the said Benjamin Bingley, his executors, administrators and assigns:" "And the 1846. WAKEFIELD v. BROWN. Volume IX. 1846. WAKEFIELD V. BROWN. said Sophia Brown, for herself, her heirs, executors and administrators, doth hereby covenant, promise and agree to and with the said Samuel Wakefield and Robert Wakefield, and with their respective executors, administrators and assigns, and also with and to the said Benjamin Bingley, his executors, administrators and assigns, in manner following: that is to say: That she, the said Sophia Brown, her executors, administrators and assigns, shall and will, from time to time, and at all times, during so much of the said term hereby granted as the said premises shall continue chargeable with and liable to the payment of the said annuity as aforesaid, well and truly pay or cause to be paid unto the said Robert (a) Wakefield, his executors, administrators and assigns, and from thenceforth, during the then residue thereof, unto the said Benjamin Bingley, his executors, administrators and assigns, the said yearly rent or sum of 1601. of lawful" &c., aforesaid, on the days and times hereinbefore appointed for the payment thereof, according to the reservation aforesaid, and the true intent and meaning of these presents." "And also that she, the said Sophia Brown, her executors, administrators or assigns, shall and will, from time to time and at all times, during the term hereby granted, at her and their own charges, well and sufficiently repair" &c., (as in the declaration, p. 210, antè); "and also shall and will, at the expiration or other sooner determination of the said term hereby granted, which shall first happen, peaceably and quietly leave, surrender and yield up unto the said Benjamin Bingley, his executors, administrators, and assigns, all and singular the said premises hereby demised" &c., (a) See p. 221. post. as WAKEFIELD V. BROWN. in good repair. Then followed a power for Robert Queen's Bench. 1846. Wakefield and Bingley, their respective executors, administrators or assigns, as also for Robert Sutton, his heirs or assigns, to enter and view the premises, and, in case of want of reparation &c., "to give or leave notice or warning, in writing, at the said demised premises, or in some part thereof, to and for the said Sophia Brown, her executors, administrators or assigns, forthwith to repair, cleanse, and amend the same; and within the time" of three calendar months next after such notice, "she, the said Sophia Brown, doth hereby, for herself, her heirs, executors and administrators, covenant and agree to and with the said Robert Wakefield and Benjamin Bingley, their respective executors, administrators and assigns, well and sufficiently to repair" &c. "according to such notice, to the satisfaction of the said Robert Wakefield and Benjamin Bingley, their respective executors, administrators and assigns, and of the said Robert Sutton, his heirs or assigns, and every of them": "And the said Benjamin Bingley" did thereby, "for himself, his executors, administrators and assigns, covenant, promise and agree to and with the said Sophia Brown, her executors, administrators and assigns, that she, the said Sophia Brown, her executors, administrators and assigns, "paying the rent and keeping the covenants," should peaceably and quietly have and enjoy &c., without let &c. by Bingley, Samuel Wakefield, and Robert Wakefield, their or either of their executors, administrators and assigns, or any person claiming under them or either of them; and that Bingley, his executors, &c., should indemnify Sophia Brown, her executors, administrators or assigns, from the rent Volume IX. 1846. WAKEFIELD V. BROWN. reserved under the lease by which Bingley held, and against the annuity: and for the production of the lease and all subsequent deeds. General demurrer and joinder. The case was argued in last Hilary term (a). Watson for the defendant. The covenant, on which this action is brought, was made with Samuel Wakefield and Robert Wakefield and Bingley. The plaintiffs assume this to be a joint covenant; and the action is brought by the two surviving covenantees, Robert Wakefield and Bingley. But it is brought, not against the original covenantee, but against her assignee; and the defendant is therefore liable only at common law by privity of estate. There is no privity of contract between the lessor and the assignee of the lessee. But the demise to the original covenantor was by Robert Wakefield only: there is no privity of estate between the defendant and Bingley, who is only the reversioner by a title paramount to the lease containing the covenant; and Samuel Wakefield never had any legal interest at all. A covenant with a stranger cannot run with the land. In Webb v. Russell (b) a mortgagor and mortgagee joined in a lease; but the lessee covenanted with the mortgagor only and it was held that the lessee was not liable to an assignee of the mortgagee. The different covenants in this lease are not all to the same parties; so that the intention seems to have been to avoid a general liability. [Coleridge J. If Robert (a) January 23d, 1846. Before Lord Denman C. J., Patteson, and Coleridge Js. (b) 3 T. R. 393. 1846. WAKEFIELD V. BROWN. Wakefield could sue alone on this covenant, you pro- Queen's Bench. bably would admit that he could sue this defendant, in respect of privity of estate.] That would seem to be so. [Coleridge J. In Webb v. Russell (a) the action was not resisted, as here, on the ground that the defendant was not the original covenantor.] In Anderson v. Martindale (b) the defendant covenanted with A. and B. that C. should pay A. an annuity: and it was held that A. and B. must join in an action upon this covenant: that was a covenant in gross; and both A. and B. were interested in the cause of action. From Eccleston v. Clipsham (c) it appears that, even where a party covenants with two jointly and severally, yet, if their interest be joint, they must sue jointly: but, if the interests be several, they should sue singly. Here Bingley has no interest. [Patteson J. If the covenant run with the land as to one, must it not do so as to the two, if they can join?] If both these plaintiffs had died, but Samuel Wakefield had survived, it seems clear that Samuel, having no interest to which privity of estate could attach, could not have sued the assignee here. But, further, it may be contended that Bingley is not a joint covenantee with the two Wakefields, even by the language of the indenture, which puts the two together, and then adds "and also" with and to Bingley. In Servante v. James (d) a covenant with part owners of a vessel, and their several executors &c., was held to be several only, and that principally on account of the separation of the executors: here is a similar separation. The reddendum is to Samuel Wakefield, while the an |