It has gen

United Merchants' Realty and Improvement Co. v. Roth.22 erally been assumed that where an ancient statute of England has formed part of the ancient law of New York, that the received. interpretation of such a statute is binding on the courts of this State. But such an assumption is not always verifiable.

The Revised Statute giving lessees the same rights against assignees of reversions that they they might have had against their immediate lessees is but a re-enactment of the English act 32 Henry VIII, chapter 34, which was a part of the law of the province of New York, and thence passed definitively into the law of the State. It is needless to say, that the statute 32 Henry VIII, chapter 34, never before was extended so far as in the principal case under consideration. In England, an assignee of a reversion in order to have the benefit of the statute 32 Henry VIII, chapter 34, must be the assignee of the entire reversion.23

At common law, on the expiration of a tenancy, the legal obligation of the tenant was to surrender and deliver up possession of the demised premises to the owner of the reversion. If he did not do this, the landlord might re-enter peaceably, or have the benefit of the statute against forcible entry and detainer. The Legislature likewise punished a holding over, at the landlord's option, by a double rent.24 But in no case in England has the statute 32 Henry VIII, chapter 34, been deemed to extend so far as it has now been extended in this State in the case under consideration. At common law no right of entry or condition broken could be assigned over and all such assignments depend on the statute 32 Henry VIII, chapter 34.25 A person holding a lease before entry has only an interesse termini.26 But in this State, as in England, if the lease is a "bargain and sale," the Revised Statute of Uses will execute the use, and entry does not now seem to be necessary to complete title to an estate for years.27 Nevertheless a lease is not generally assumed to touch a reversion; it relates to possession of a term, the seisin or reversion remaining always wholly in the landlord.28

22 193 N. Y. 570.

23 Knights Case, 5 Co. 55b; but see Bacon, Abr., "Lease and Terms of Lease," N., as to reversionary leases.

24 4 Geo. II, chap. 28, now § 230, Real Prop. Law.

25 Supra, pp. 196, 197, 758.

26 2 Black. Comm. 144; 1 Cruise, Dig., 224.

27 Smith, Landl. & Ten., 12; Stone v. Auerbach, 117 N. Y. Supp. 734. 232 Black. Comm. 144, and cases cited.

But the principal case holds otherwise, and that the new lessee is an assignee of a part of the reversion or grantee of the demised premises, so as to enable him to treat his predecessor in possession as a hold-over. It cannot be said that at common law a lease may not take effect as a reversion, for there are cases in the old books holding it may.29 But the point in the principal case is, that the lease operates to confer on the new lessee a right in gross, which does not run with the reversion and is purely personal to the landlord, and outside of the terms of the contract with the new lessee.3 30

An embarrassment in deciding that a right in gross is part of the reversion, or if so that the reversion may be split up, is that it constructively deprives the landlord himself of any action on the lease for breach of covenant against the hold-over during the term of the new lease, for if the new lessee acquires one right under the lease to the "hold-over" he must succeed to all the rights of the landlord on such lease. Another difficulty in this departure from the common law would seem to arise where there is a hold-over, and the new lease contains a covenant against assignment, and the landlord refuses to waive this covenant. The new tenant, by assenting to the "hold-over," virtually assigns his term to the holdover in contravention of an express covenant not to assign it. The landlord may have an insuperable aversion to the hold-over, and yet the new lessee can give the hold-over possession, under the decision in the principal case.

It would have been interesting if the nature of a "hold-over's " interest had been better considered, as it is a mere tenancy by sufferance, and at common law held not assignable so as to bind any one except the tenant himself.31

The right of a landlord to treat a hold-over as a tenant for another year is a purely personal right, or a right in gross, which is not part of the land and does not run with the land, and is therefore not affected by the statute relating to assignees of reversions.32 32 Henry VIII, chapter 34, of which this section is only a re-enactment by the authority of the new State as successor to the former sovereignty, relates only to reversions. But the decision

in the principal case is now the other way.

29 Cited, Bacon, Abr., Leases and Terms of Years, N.

30 Platt on Covenants (Ed. of 1829), 522, 534, 538.

31 Shopland v. Rydler, Cro. Jac. 55; Co. Litt., 57b; and see 3 East, 451. 32 Platt on Covenants, 251, 527, 538, 541.

I Revised Statutes, 748, Section 25, Supra. The provisions of I Revised Statutes, 748, section 25, were an epitome of chapter 98 of the Laws of 1805, as it was re-enacted in the Revised Laws of 1813.33 In the remarks under section 31 of the Real Property Law, the remedies reserved on fee farm grants, or those grants in fee subject to perpetual rents, have been freely discussed,84 and it is not necessary to repeat, in detail, the causes which led to the act of 1805. We may now confine our attention to the salient points involved in this branch of section 223 of the Real Property Law.3 35 In the first place we must remember, that the act 32 Henry VIII, chapter 34 36 (embodied in 1 R. S. 747, §§ 23, 24), had no relation to assignments of perpetual rents reserved on estates in fee, for there the tenant of the rent had no reversion.37 As after the Statute Quia Emptores no subject could reserve a rent as a mere incident of tenure, the reservation of a perpetual rent seck, or one unaccompanied with a charge on land, or a clause reserving right of distress or re-entry, was, at common law, a very precarious security even in the hands of the original grantee.88 Indeed, it was claimed in New York that the assignees and devisees of a tenant of a perpetual rent had practically no remedy whatever. This claim extended even to rents charge, such as were usual in the Manors of Rensselaer and Livingston.4 40

39

The act of 1805, extending the remedies and rights of the act 32 Henry VIII, chapter 34, to assignees of rents reserved on grants in fee, was long considered the basis of protection to all devisees, assignees and heirs of perpetual rents in New York.41 Chapter 396 of the Laws of 1860, however, purported to repeal the act of 1805 and its re-enactments as far as possible, making them inapplicable to grants in fee made prior to 1805 or subsequently to 1860. The

33 1 R. L. 364, § 3, and thence introduced in 1 R. S. 748, § 23.

34 Supra, pp. 190-201. 35 Supra, p. 756.

36 Supra, p. 757.

37 Comyn, Landl. & Ten. 267; Van Rensselaer v. Read, 26 N. Y. at p. 569.

38 The right of distraint depended on fealty and tenure at common law. Supra, p. 85.

39 Supra, pp. 195, 196.

40 These grants usually reserved the right to re-enter for breach of

conditions subsequent, and the right to distrain, but not invariably. (Vide Hosford v. Ballard, 39 N. Y. at p. 150.) Cf. chap. 14, Laws of 1774.

41 Supra, pp. 195, 196. See, also, the curious history of the tenants' side of the anti-rent difficulties in New York, set out in a book entitled "Rents, Covenants and Conditions," by Bingham and Colvin, Albany, 1857. Sed cf. chap. 14, Laws of

1774.

object of this repeal was supposed to be, nay, undoubtedly was, to take away or embarrass the remedies of devisees, assignees or heirs of perpetual rents, reserved on deeds in fee.42 But subsequently to 1860 it was held that the remedies of assignees, devisees and heirs of perpetual rents reserved in deeds in fee, were independent of the act of 1805, and that an action on the covenant lay at common law; 43 that the covenant ran with the land, and might be taken advantage of by grantees, devisees and assignees of the original covenantee. This decision puts the remedies on covenants for the payment of rent, and on conditions for re-entry, contained in deeds in fee, at rest in New York, independently of the act of 1805 and its several enactments and of this section of the Real Property Law.46 Even proof of non-payment of rent for a period of sixty-three years will not raise a conclusive presumption of release of rent reserved, when the covenant sued on remains in possession of the covenantee, or his heirs and assigns."

47

Remedies of Heirs of Lessor. Before this section, the remedies of heirs by entry, action or otherwise, on breaches of covenants in leases, were provided by statute.48 They might maintain action for waste,49 and their right of action was not impaired by descent cast,50

Assignees of Lessees. The assignee of a lease is liable for rent until he assigns, but no longer, unless he stipulates otherwise.51

Original Lessees always liable on Covenant. But the original lessee remains liable for rent even after assignment by him, as he covenants to pay the same.52

42 See reporter's note to Cruger v. McLaury, 41 N. Y. at p. 227.

43 Van Rensselaer v. Read, 26 N. Y. 558.

44 Van Rensselaer v. Read, 26 N. Y. 558.

45 Van Rensselaer v. Read, 26 N. Y. at p. 576; Van Rensselaer v. Dennison, 35 id. 393; Cruger v. McLaury, 41 id. at p. 222; Michaels v. Fishel, 169 id. 391; cf. Graves v. Deterling, 120 id. at p. 457.

40 Bradt v. Church, 110 N. Y. 537; Taylor, Landl. & Ten. note to § 261 (8th ed.) Cf. Jones v. Reilly, 174 N. Y. 97, 104.

47 Central Bank v. Heydorn, 48 N. Y. 260; cf. § 72, Real Prop. Law.

48 1 R. S. 747, § 23; Laws of 1846, chap. 274

49 2 R. S. 334, § 4; Code Civ. Proc., § 1652.

50 2 R. S. 295, § 15; Code of Proc., 87; Code of Civ. Proc., § 374. 51 Dassori v. Zarck, 71 App. Div. 538; Fechler v. Schonger, 53 Misc. Rep. 650; Marone v. Hinckel Brewing Co., 126 App. Div. 554; Stone v. Auerbach, 117 N. Y. Supp. 734; and see p. 877, infra.

52 Post v. Jackson, 17 Johns. 239; Ranger v. Bacon, 3 Misc. Rep. 95; Manley v. Berman, 60 id. 91; and see p. 877, infra.

§ 224. Attornment by tenant. The attornment of a tenant to a stranger is absolutely void, and does not in any way affect the possession of the landlord unless made either:

1. With the consent of the landlord; or,

2. Pursuant to or in consequence of a judgment, order, or decree of a court of competent jurisdiction; or,

3. To a mortgagee, after the mortgage has become for feited.

Formerly section 194, Real Property Law of 1896, chapter XLVI, General Laws:

§ 194. Attornment by tenant.-The attornment of a tenant to a stranger is absolutely void, and does not in any way affect the possession of the landlord unless made either:

I. With the consent of the landlord; or,

2. Pursuant to or in consequence of a judgment, order, or decree of a court of competent jurisdiction; or,

3. To a mortgagee, after the mortgage has become forfeited.53

Section 194 was formerly 1 Revised Statutes, 744, section 3:

§ 3. The attornment of a tenant to a stranger shall be absolutely void, and shall not in any wise affect the possession of his landlord, unless it be made,

1. With the consent of the landlord: or,

2. Pursuant to, or in consequence of, a judgment at law, or the order or a decree of a court of equity: or,

3. To a mortgagee after the mortgage has become forfeited.54

Attornment. At common law, an attornment was the assent of the tenant to a grant of the seigniory. This grant, as the relation of lord and tenant involved reciprocal obligations, could not be made without the tenant's consent.55 Such consent was an "attornment." 56 But this restraint on the lord's power of alienation soon wore away.57 Even after the gradual amelioration of the feudal law, an attornment of the tenant was still, however, necessary for some purposes when a landlord assigned a reversion.58 The legal doctrine of attornment had three purposes: (1) That the tenant

53 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

54 Repealed, chap. 547, Laws of 1896.

55 Co. Litt. 309a; Litt., § 551; see 248, Real Prop. Law.

56 See present definition of attornment, Austin v. Ahearne, 61 N. Y. 6.

57 2 Black. Comm. 72.

58

3 Preston, Abstracts of Title, 82. Prior to 4 & 5 Anne, the grant of a reversion or an incorporeal hereditament was not perfect till attornment; and see Comyn, Landl. & Ten. 423.