The issues joined between the parties, were, first, whether Benjamin Harcourt was the owner of the lease, and was entitled, by virtue of the assignment to him, to receive compensation for the buildings and improvements erected ánd made upon the demised premises, &c. 2. Whether the defendant had notice of the assignment of the lease to Eichard Harcourt before the release from Thompson.
Upon the first point, it is clear that all the interest of Thompson in the leased premises, not only his right to the unexpired term, but also to compensation for the improvements, passed by his assignment to Eichard Harcourt. The assignment contains a special provision upon this point, and also a covenant that Thompson, the assignor, will consult Harcourt in the selection of the individual, to be named by him, according to the provisions of the lease, to ascertain the value of those improvements.
It is equally clear that all the interest which Eichard Harcourt thus acquired in the demised premises, and the improvements thereon, passed by his assignment to Benjamin Harcourt, for whose benefit this action is brought.
The terms in which the subject or interest intended to be assigned, is described, are, “ all the right, title, interest, *269*claim and demand, both in law and equity, and as well in possession as in expectancy, of the said party of the first payt, of, in and to all that certain house and lot or piece of land, situate, &c., with all and singular the hereditaments and appurtenances thereunto belonging, or in any wise appertaining.” The improvements or buildings for which compensation was sought by this action under the covenant in the lease, were the dwelling house, shed and blacksmith shop, which had been erected by Thompson. Now all the assignor’s interest in the house, not only present, but expectancy, is expressly assigned, and his interest in the other buildings passed, because they were appurtenant and belonged to the house and lot.
The judge, therefore, ruled correctly, that "the assignments sufficiently supported the first issue in behalf of the plaintiff.
Notice to the defendant of the assignments of the .lease to Eichard and Benjamin Harcourt, before the release from Thompson was given, was clearly proved.
The action was properly brought in the name of Thompson, the original lessee. The covenant on the part of the defendant to pay for the buildings to be erected, &c., is with Thompson only, and not with his assigns. The subject of the covenant was not in esse at the date of the lease, [t was to pay for buildings to be erected, not to repair existing houses, sheds, &c. Such a covenant to repair, extends to the support of the thing demised, and is, quodammodo, annexed and appurtenant to it, and shall bind the assignee, though he be not named. But when the covenant relates to a thing which is not in being at the time of the demise, it cannot be appurtenant to the thing which hath no being. (Spencer's Case, 5 Co. 17.) Of course, it does not. run with the land. Suppose the lease had contained a covenant on the part of Thompson to erect the buildings, as well as a covenant on the part of the lessor to pay for such buildings as should be erected. Spencer's Case decides, beyond all doubt, that the assignees of Thompson, not being named in the covenant, would *not have been bound by it; and if a covenant to build does not run with the land, and *270bind the assignees,, where they are riot named, it would seem-to follow that'a covenant-on the part of the lessor to pay for buildings to he erected, is a personal covenant only, and not one which runs with the land. If so, the action for a breach of it must be brought in the name of the original covenantee.- There is no privity, either of. estate or contract, between the covenantor- and the assignee. [1]
This doctrine is recognized and supported by the case of Lametti and óthers, executors, &c., v. Anderson, (6 Cowen, 302.) The action in that case was sustained in the name Of the executors of the assignee.- But the. assignees were expressly named in the covenant. - -
The plaintiff’s damages were not limited to the penal gum inentioned in the lease. That principle applies only to cases of surety, except the bond be conditioned for the payment of money only. (Doug. 49 ; 2 Bl. Rep. 1190; 6 T. R. 303; 2 T. R. 388.)[2]
The evidence was not entirely harmonious as to the value of the buildings. The jury have adopted about the medium value as established by the witnesses.
Bichard Harcourt- was a competent witness. He was riot objected to on the ground of-interest; but because he had voluntarily, as-was alleged, Surrendered the lease on which the action was brought, to the defendant; and was, therefore, incompetent to impeach or invalidate his own act, by sustaining the present action;
*270-1The evidence does not establish the fact of a surrender of the lease, by Richard Harcourt, with a view to its ni-i- t- , , . , . „ cancelled. It was conditional, and in the expectation of receiving a deed for the demised premises upon a new contract; which contract appears never to have been carried into effect.
The lease never was, in fact, cancelled. It was produced by the plaintiff upon the trial, and must have been restored by the defendant after the alleged surrender.
Motion for new trial denied.
When a covenant will be deemed to inn with the land, and when it will be considered as merely personal or collateral, discussed and considered. Norman v. Wells, 17 Wendell’s Rep. 136.
See New York Digest, vol. 2, tit. Covenant.
A party, in consideration that another party had sold him fourteen lots of land, for the sum of twenty-one thousand dollars only, covenanted to remove from the lots the surplus earth and stone, abtive the corporation level, within a reasonable time, and erect two brick houses upon the "lot by a specified day, or, in default of erecting such houses, to pay the other party four ,-iousand dollars, when afterward demanded ; held, the sum specified is not a penalty, to be paid by way of damages for .not building the houses; but if .the houses are not built, to be paid as part of the contract price, for the lota conveyed. Pearson v. Williams' Administrators, 26 Wen. 630, affirming S. C., 24 Wen. 244. N. Y. Dig. vol. 2, p. 641, No. 17.