Page:Harvard Law Review Volume 9.djvu/462

434 434 HARVARD LAW REVIEW. 3 Myl. & Keene, 209, holding that it can, and Yale v. Deverer, 22 N. Y. 451, that it cannot, the court's ruling that it could not in this case is scarcely doubtful, as the evidence to show any implication was slim. Property — Covenant of Warranty — Married Women's Act. — Defend- ant's wife owned real estate. Defendant lived on the land with his wife, and joined in her conveyance and covenant of warranty. The wife is dead. This is an action on the covenant by a remote grantee. Held, defendant is not bound. The covenant does not run with the land; the defendant having no such privity of estate as is essential to carry a covenant of warranty. Alygatt v. Coe, 42 N. E. Rep. 17 (N. Y.). This case is interesting as showing one of the results of the Married Women's Act by which the wife holds absolute title to her real property as though she were unmar- ried. At common law the defendant would have been bound in this case, for he would have had an estate during coverture in his wife's property, and this would have consti- tuted sufficient privity of estate to have carried the covenant with the land. Kobertsoji V. Nofrjs, II Q. B. 916; Beale v. Knowles, 45 Me. 479. Property — Easement in Street — Abandonment. — Plaintiff owned property abutting on a street over which the defendant company had erected an elevated road. This action was brought for damages for the obstruction of plaintiffs street easements. The defendant attempted to establish an abandonment of these easements by proof of the following facts. Plaintiff "s lot had been owned by one L., who had brought suit against the present defendant for the same obstruction. While the suit was pending, L. conveyed to G., the conveyance being accompanied by an attempt en the part of L. to reserve to himself by an unrecorded instrument the street easements and the right of suit for their obstruction. G. conveyed the lot to the plaintiff, who had no notice of this agreement. Then L. settled his action against the defendant company, and gave them a release from all claims by reason of the operation of their road, and declaring that he had intended such release at the beginning of his action. Held, that there was no effectual abandonment by L. ; that the unrecorded agreement between L. and G. was inoperative at law, and that the plaintiff was entitled to damages for the obstruction of his easements. Foote v. Metropolitan El. Ky. Co. et al., 42 N. E. Rep. 181 (N. Y.). This case is peculiar in its facts. The conclusion reached as to the abandonment, which is purely a matter of intention and of fact, seems correct. See Washburn on Real Property, 4th ed., vol. ii. p. 371, and cases cited. The plaintiff was of course unaffected by the unrecorded agreement between his predecessors in title, and the rights of property in the street, being appurtenant, passed with the abutting land. Property — Landlord and Tenant — Assignment of Rent — Reversion* — A. let premises to B. for five years. B. sublet a part of the premises to the defend" ant for the same time. Defendant assigned his lease to C, with covenant that his lia- bility to B. should not be thereby altered. B. assigned back to A. all rentals due under his lease to defendant. A. then conveyed to plaintiff all his interest in land and existing leases held by him. C. failed to pay rent, and plaintiff sued defendant. Held, that, as B.'s lease to defendant terminated at same time as A.'s lease to B., leaving no reversion in B., B.'s assignment of rentals to A. amounted to an assignment of the leiise of defendant, and this passed to plaintiff by A.'s subsequent assignment. Plain- tiff therefore could sue defendant on latter's covenant to B., the effect of which made defendant primarily liable for the rent, and not as mere surety for C. Latta v. Weis, 32 S. W. Rep. 1005 (Mo.). The contention of defendant's counsel was that B. retained a reversion because only the rentals were conveyed to A., and that A.'s assignment of his interest in the land gave plaintiff no right to the rentals which still belonged to A. The court seems prop- erly to have held that, when B. parted with all beneficial interest in the land, to the very end of his own term, it amounted to a complete assignment. Property — Landlord and Tenant — Implied Covenant for Quiet Enjoy- ment. — The defendant, having a lease for eight years in certain premises, sublet them for ten years to the plaintiff, acting in good faith and under a bona fide mistake ; the word " demise " was not used in the sublease nor was there any express covenant for quiet enjoyment. The plaintiff, being evicted at the end of eight years by the superior landlord, brings action against his lessor for breach of implied covenants. Held: (i) A covenant cannot be implied unless the word "demise" is used. (2) If such a covenant were implied it would extend only during the estate of the lessor. Baynes v. Lloyd, [1895] 2 Q. B. 610. 'I'he court expresses doubt on the first point. It has been held otherwise in this country. Duncklee v. IVebber, 151 Mass. 408. As to the second point, the court relies