Calvert v. Bradley

THIS case was brought up by writ of error from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.

It was an action of covenant brought by the Calverts against Bradley and Middleton, who were the assignees of the unexpired term and property in the house for the purpose of paying the creditors of the lessee. The lease was of the property called the National Hotel, in Washington, owned as follows:

Shares.

George H. Calvert and Charles B. Calvert, jointly 205

Roger C. Weightman 66

Philip Otterback  22

William A. Bradley 20

Robert Wallach, represented by his guardian, Alexander Hunter     2

-

Total shares    315

All of the above named persons signed the lease.

The history of the case and the manner in which it came up are set forth in the opinion of the court.

It was argued by Mr. Wylie, for the plaintiffs in error, and by Mr. Bradley and Mr. Lawrence, for the defendants.

The points made by the counsel for the plaintiffs in error were the following.

Two questions arise out of the record for the decision of this court:

First. Whether the plaintiffs have brought their action in proper form, without joining with the other covenantees.

Second. Whether the defendants, being assignees of the term, and having accepted the same for the purpose of fulfilling a trust, are liable on the covenants of the lease, as other assignees would be.

First point. In this case the covenant was with the covenantees jointly and severally; but as the two Calverts were the only parties whose interest in the property, and whose demise was joint, it was probably the intention of the parties that the term 'jointly,' in the covenants, was intended to apply to their case, and that as to all the rest the covenants were to be several. That construction, at least, will render all parts of the instrument consistent.

There is a distinction as to these terms 'jointly and severally,' when applied to covenantees, and when applied to covenantors. Covenantors may bind themselves jointly and severally, and they will be so bound, because that is their contract. But covenantees must bring their actions jointly or severally, according as their interests are joint or several. The rule is laid down by Lord Denman in Foley v. Addenbrooke, 4 Adol. & E. 205, 206, in the following terms: 'But the result of the cases appears to be this, that where the legal interest and cause of action of the covenantees are several, they should sue separately, though the covenant be joint in terms; but the several interest and the several ground of action must distinctly appear, as in the case of covenants to pay separate rents to tenants in common upon demises by them.'

So in James v. Emery, 8 Taunt. Rep. 244, it was said by C. J. Gibbs: 'The principle is well known, and fully established, that if the interest be joint, the action must be joint, although the words of the covenant be several; and if the interest be several, the covenant will be several, although the terms of it be joint.'

The more recent decisions all refer to Slingsby's case, 5 Rep. 18, 19, as the leading authority on this question; then to Anderson v. Martindale, 1 East, 497; Eccleston v. Clipsham, 1 Saund. 153; Wilkinson v. Lloyd, 2 Mod. Rep. 82, besides the cases already referred to; S. P. in Slater v. Magraw, 12 Gill & J. 265.

The rule, as above established, is subject to modification where one of the covenantees possesses no beneficial interest, in which case the action must be joint; for though the covenant be separate, the legal interest is joint. Anderson v. Martindale, 1 East, 497; Southcote v. Hoare, 3 Taunt. 87; Scott v. Godwin, 1 Bos. & Pul. 67; which explains the decision in the case of Bradburn v. Botfield, 14 Mees. & Wel. 559.

Second point. The question is whether a party who accepts an assignment of lease in a deed of trust, as a security for money lent, or debt incurred, is liable upon the covenants in the lease, as he would be if the assignment were absolute, though he has never occupied the premises in fact?

On this question the decision in Eaton v. Jaques, Douglas's Rep. 460, is directly adverse to the plaintiffs in this cause.

That decision, however, was at the time not acquiesced in by other judges, or by the profession, and has since been repeatedly overruled, and stands alone and unsustained by any other authority. See the case of Williams v. Bosanquet, 1 Brod. & B. 238; Platt on Cov. 3 Law Lib. 488; Taylor's Land. & Tenant, 223; Turner v. Richardson, 7 East, 344; Walter v. Cronly, 14 Wend. 63.

The doctrine of Eaton v. Jacques has been followed in New York, (see 4 Kent's Comm. 153, 154,) but the doctrine of that case was repudiated as to the District of Columbia in the cases of Stelle v. Carroll, 12 Pet. 201; and Van Ness v. Hyatt, 13 Ib. 294.

Again, these trustees might themselves have sold and conveyed the leasehold interest in question. Suppose that had been done, would not the purchaser have taken the interest, subject to all the covenants in the lease? That cannot be questioned. If so, then the trustees must have held the lease in the same manner themselves; for they could not have assigned the lease subject to a burden from which it was exempt whilst in their own hands.

Finally, how does the question stand in reference to considerations of justice and equity?