Walsh v. Packard

• Decision Date: 14 January 1896
• Citation: 42 N.E. 577,165 Mass. 189
• Parties: WALSH et al. v. PACKARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 189

42 N.E. 577

WALSH et al. v. PACKARD.

Supreme Judicial Court of Massachusetts, Suffolk.

January 14, 1896

COUNSEL

W.M. McInnes, for appellant.

O.A Galvin and J.F. Sweeney, for appellees.

OPINION

HOLMES, J.

This is an action upon a covenant appended to a lease, brought by the administrators of Walsh, the lessor and covenantee. The only objection urged to the plaintiffs' recovery is that, if the obligation of the covenant did not cease with the life of Walsh, his heirs, and not his administrators, were the proper persons to sue upon it. The covenant is as follows:

"In consideration of the letting of the above-described premises and one dollar to me paid, the receipt of which is hereby acknowledged, I do hereby become surety for the prompt and full payment of the rent and performance of the covenants as specified in the above lease to be paid by Ida E. Small to John Walsh. Witness my hand and seal, the twenty-eighth day of November, A.D.1892. Wm. A. Packard. [ Seal.]"

The contract raises a question of construction as well as a question of law when the construction is settled. It does not mention heirs, executors, administrators, or assigns, and courts are a little slower to enlarge by implication the undertaking of a surety or guarantor than they are to enlarge that of the principal party. But perhaps the word "surety," although seemingly inartificially used, coupled with the nature and object of the contract, makes the collateral undertaking as large as the principal one. We will assume that it is to be read in the broader sense. We have no doubt that it continues to run after the death of the original covenantee. But, supposing heirs, executors, and assigns to have been mentioned, it seems to be settled in this commonwealth that the instrument would not work like a letter of credit offering a new contract to the successors of Walsh (Saunders v. Saunders, 154 Mass. 337, 338, 28 N.E. 270; Abbott v. Hills, 158 Mass. 396, 33 N.E. 592), if that would make any difference when there has been no purchase on the faith of it; and therefore, apart from other reasons, the only ground on which the heirs can be preferred to the administrators as the proper plaintiffs is that the covenant runs with the land, or, more accurately, runs with the estate of the covenantee, and that the heirs are successors to that estate. The covenant is collateral to the lease (Virden v. Ellsworth, 15 Ind. 144), and is not affected by St. 32 Hen. VIII. c. 34; Harbeck v. Sylvester, 13 Wend. 608. See Jones v. Parker, 163 Mass. 564, 568, 40 N.E. 1044.

In Allen v. Culver, 3 Denio, 284, 301, a similar covenant was held by the supreme court of New York to pass to assigns, but the point was decided without discussion on the supposed analogy of Pakenham's Case (a covenant on the part of a convent that the convent should sing every week in a chapel in the plaintiff's manor), Y.B. 42 Edw. III. p. 3, pl. 14. The reference to this case showed that the court did not have in mind the distinction pointed out by Lord Coke (1 Coke, 120a, 122b), and discussed in Norcross v. James, 140 Mass. 188, 2 N.E. 946, between those covenants which create, or follow the analogy of, easements, and go with the land even to disseisors, and those pure contracts, like covenants for title, upon which no one can sue except parties and privies. Pakenham's Case was of the former class. The argument for the plaintiff in that case of most weight in the mind of the court was that the plaintiff was tenant of the land, and that the service claimed was a thing annexed to the land, being of a kind that could be created by prescription, or, as it was stated by Fitzherbert, every one who has the land shall have the covenant. Fitzh.Abr. "Covenant," pl. 17. Those who are curious to verify the fact assumed in Pakenham's Case, that such services from a stationary ecclesiastical corporation might be due by prescription, may consult Y.B. 22 Hen. VI. p. 46 pl. 36; Id., 21 Hen. VII. p. 5, pl. 2; Williams' Case, 5 Coke, 72b, 73a; Slipper v. Mason, Nelson's Lutw. 43, 45; Rast.Ent. pl. 2b. See, further, Middlefield v. Knitting Co., 160 Mass. 267, 35 N.E. 780.

The case at bar, on the other hand, is more analogous to the covenants for title; for, although rent savors of the realty, any warranty or insurance of rent is a purely personal contract, of which another than the original contractee can avail himself only on principles of contract. The true question is whether such a guaranty is wholly analogous to covenants for title. In the case of some of these, at least, assigns of the covenantee are treated as privy to the contract, and can sue in their own names; and, when this is so, heirs also can sue in their own names for breaches happening while they hold the estate of the covenantee. Lougher v. Williams, 2 Lev. 92; Rawle, Cov. (5th Ed.) § 316.

But this right thus given to assigns only shortened up the old process by which, within certain limits, each purchaser looked in...