[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 20 The judgment in this case, I think, is erroneous on either of two grounds. First, the defendant's covenant was prospective, and not retroactive. The building which the original lessees, Harris Meeker, were to erect on the demised premises, was to be erected within six months from the commencement of the term, which was February 1st, 1854. Harris Meeker erected a building, in apparent and designed fulfillment of said covenant, within the six months, and the same was complete and in use, and had been so in use for upward of eighteen months, when they assigned said lease to the defendant, which was on the 4th of March, 1856. When the defendant took said assignment he and the plaintiff must be presumed in law to have been on the premises, and to have made the covenant upon which the action is brought in view of said building, and with full understanding of the fact of the erection and its condition. In this view no objection having been then made or suggested in respect to said building, or any complaint that it was not erected and constructed in full satisfaction and fulfillment of the covenant in said lease, in respect to its erection, I think the plaintiff must be deemed to have accepted the same at or before that time, and he should be precluded and estopped from afterward alleging as against the defendant that said covenant *Page 21 had not previously been entirely and satisfactorily fulfilled by the original lessees of said premises. The defendant had a right to assume at that time from the existing condition of said premises (the six months for the erection of said building having having long since passed), that such covenant had been in fact executed and fully performed.
But, if this ground is not sufficient to preclude a recovery against the defendant, then the defendant, I think, is not liable for the defect in the construction of said building on the ground that the said covenant was then broken, and his covenant did not in express terms include any guaranty in respect to the past acts or neglects, or breaches of covenant of the original lessees. The covenant of the defendant is in legal effect that he will fulfill the unbroken covenants in said lease; he will, from that time, take the place of the original lessees, and fulfill their covenants. It would be a species of fraud to hold him responsible for the past neglects or breaches of covenant of Harris Meeker. He took, like an assignee of a lease, with an express, instead of an implied, covenant to fulfill the covenants of the lessee therein contained.
His exemption from liabilities for past breaches of covenant of his assignor, I think, rests upon the same principles within the following cases: (Lewis v. Ridge, Croke Eliz., 863;Grescott v. Green, 1 Salk., 199; Churchwardens of St.Savior v. Smith, 3 Bur., 1271; Tillotson v. Boyd, 4 Sand. Sup. C., 521.)
The judgment should be reversed, c.; new trial granted, with costs to abide the event.
LOTT, J., read an opinion for affirmance, on the ground that it was the intent and object of the covenant in the lease that the lessor should, at the expiration of the term, be entitled to a building on the lot, as a part of the consideration of the lease, and this covenant defendant assumed and agreed to fulfill. The failure to do so was a breach of his agreement. And, it not appearing that the imperfection of construction *Page 22 was known at the time of the assignment, plaintiff's testator did not waive it, and is not estopped.
SUTHERLAND, FOSTER, SMITH and GROVER, JJ., and EARL, Ch. J., for reversal.
LOTT, INGALLS and HUNT, JJ., for affirmance.
Judgment reversed, and new trial ordered.