The opinion of the court was delivered by
Phelps, J.This case coming before us upon a demurrer to' the defendant’s third plea in bar alone, we have no concern with the other issues determined in the court below.
• The sufficiency of the third plea depends . upon the nature and effect of the covenant declared on. It is to be remembered, that there is, in the lease in question, no undertaking in terms, on the part ol' the lessee, to pay the rents. The demise is made to him upon the usual terms, he “ yielding and '-paying” certain rents therein specified. These words, “ yielding and paying,” &>c. however, imply a covenant, and-the acceptance of the lease, upon these conditions, by the lessee, is, in legal construction and effect, a covenant or undertaking to pay the stipulated rent. This, I apprehend, is upon the principle, of such common application in cases of simple contract, where the law implies a promise from the act of the party, although none is, in fact, made. Thus, if he buy goods at a stipulated price, the-law. implies a promise to pay that price, although none is, in terms, made. So, in this case, the acceptance of the lease, upon the terms expressed in it, is becoming a party to the contract, in all its particulars, and involves, as a necessary legal consequence, an obligation to pay the rent. The contract being-under seal, the Undertaking, involved in becoming a party to it, assumes, of course, the technical form of covenant, and, hence, the doctrine of implied covenants is analogous to that of implied assumpsit.
The case is the sanie with one, who becomes a party to the lease by assignment of the -term; he being liable to an action of covenant for the rents, although not an original party to the instrument, upon the principle already stated. Now, with respect to him, it cannot be said, in strictness, that he covenanted “ in and by the indenture;” for at the time, when the instrument took effect, he was not a party to it. But, upon taking the as*199signment of the term., upon the' conditions of the lease, the law implies a covenant or undertaking on his part to pay the rent. So it is with each successive assignee ; and, hence, it is said that the covenant runs with the land, in other words, the covenant is incident to the estate, and whosoever takes the one, is considered to .have voluntarily assumed the obligation of the other. If it be asked, why, in this view of the subject, the remedy is not by assumpsit, the answer is-, that this doctrine was; settled long before the action of assumpsit came into general use.
So far, there is no difficulty in the subject, nor is it of any importance, whether, the covenant growing oat of the word's “ yielding and paying,” is considered an express or implied covenant.
But here a question arises. .Suppose the lessee assigns his term, is he liable personally in the action of covenant, for rents, which thereafter accrue ? Or, in other words, is there then subsisting a personal covenant, distinct from and independent of the covenant which runs with the land. Or, to state the question more particularly, with reference to- this case, does the assignment involve a guaranty, on the part of the assignor, of the performance of the terms and’ conditions of she lease by the assignee ?
It is said in the books, that, if the covenant be express, the lessee is bound, so long as the term endures ; but if implied, he is discharged whenever he is divested of the estate. The question then becomes this. Is the covenant created by the terms, “ yielding and paying,” an express or implied covenant ? Although the rule above mentioned, appears to be well settled, yet, upon the question, what is an express covenant, there is great, confusion in the books. Indeed, whether the covenant-in question be express or implied, is a question upon which the authorities are so contradictory as to furnish little aid in its solution. The manner, in which the point is treated by elementary writers, may furnish a fair specimen of the confusion, which, has prevailed on the subject.
Bacon classes this covenant with implied covenants. He thus illustrates the distinction : “ A leases to B, rendering rent, and B. covenants to pay it, B. is liable after assignment, it being upon an express covenantcites Brownl. and Sid. 441. Bac. A. Covenant E. 4.
*200Viner, (Gov. F.) says such a covenant is a covenant in law, or implied, and cites Brownl. 215. Dyer, 15th Hen. 8th. He also (Cov. C.) cites 2 Lev. 206. to shew it a covenant in law, and Sty. 387, 407 to prove it express.
Selwyn says.it is an express covenant, and cites Styles 407. But cites Sid. 447. 1 Saund. 241. note 5. and 3 T. R. 402. contra.
Chitty cites, as cases of express covenant, 1 Saund. 241. and note. 1 T. R. 92. 7 do. 345. H. Black. 433. 4 T. R. 94, 100, and as implied, Sid. 447. W. Jones 223. Cro. Jac. 525.
In Pelersdorff’s Abr., Roll. Abr. is cited one way, and Siderfin the other. Swift classes them with covenants in deed, or express covenants, yet he says the words, “ yielding and paying,” imply a covenant.
Sergeant Williams, in his note to Saund. 441. lays it down, that the covenant is implied.
In short, the old authorities appear quite contradictory, and the elementary writers have handed them down to us as they are. On the whole, however, the weight of authority, and especially modern authority, appears to be in favor of holding these covenants implied.
The difficulty seems to have arisen from the indefinite use of the terms “ express,” and “ implied,” as having reference to the thing to be done, on the one hand, or the act of assuming the obligation, on the other. Thus, the expression “ yielding and paying rent,” expresses the thing to be done, and, in that sense, the contract is express. Yet the words are introduced, in form, as a condition of the demise, and are susceptible of such a construction. Still the question, whether the lessee incurs a personal liability to be enforced by action, is not necessarily involved in the phraseology, but is left to legal construction or implication. It is true, that,, by acceptance of the lease, the lessee becomes liable for the rent; but it is impossible for me to distinguish the origin of his liability from the ordinary case of an implied assumpsit, where the obligation arises, not from express undertaking, but from voluntarily assuming a relation, to which the law attaches certain liabilities. Indeed, remove the seal from the lease in question, and we have a case for assumpsit for use and occupation; replace the seal, and the action must be covenant; but the covenant in one case is as much implied as the promise in the other. In my opinion, the distinction between express *201and implied covenants, when taken with a view to the question of the lessee’s continued liability, has reference to the nature of the obligation assumed. For if the obligation of the defendant be merely an incident to his tenancy, which is-co'-eval with it, and passes with it, by assignment, then it would seem that he is holden no longer than he remains tenant $ but if it be a personal contract, capable of subsisting distinct from and independent of the tenancy, then it subsists so long as the term endures. Indeed, the distinction has no sort of meaning, when applied to the subject matter of the covenant, to wit, the payment of the rent. The rent to be paid is always expressed in a formal lease, and must be, to render the reservation valid.
It seems to me obvious that the distinction has reference to the matter of the obligation, and that, unless the lessee bind himself personally, in express terms, to the payment of the rent, his obligation is incident to his estate, and so far as it gives a personal remedy, by action of covenant, it is implied.
It was doubtless competent for the lessee to assume upon himself to pay the rent, as an enduring obligation, which might survive an assignment of his term. Whether he has done so, in any given case, is a question of intention, to be gathered from the deed. If he expressly undertake, promise or covenant to pay it, the question is at rest; but if he merely accept the lease, which reserves the rent, and has the power, by -law, to assign the term, the absence of such express undertaking affords strong evidence of the intent of the .parties on -this point.
In this view of-the subject, it is clearly incumbent on the plaintiff, to establish the personal obligation. From the nature of the covenant, growing out of the assumption of the character of tenant, depending upon that relation, and accompanying it, in case of an assignment of the term, we are inclined to consider it as not involving, necessarily, and of course, a personal liability, capable of being disconnected from the relation of landlord and tenant. If the mere acceptance of a lease upon the terms of “yielding and paying,” is considered as‘amounting to a covenant, or if the covenant originates in such an act, -it seems, that, if the relation is transferred, it is so with all its -incidents ; and if the lessee can divest himself-of-the -character of tenant, he would of course clear himself of all liability incident to it. On the other hand, it is always in the power of the lessor to require a covenant, in terms for the payment of the rents, and, if such an obligation is *202intended to be assumed, words should be used clearly indicative of such intention, — such as “ covenant,” “ agree,” &c.
Another consideration fortifies this argument. An assignee ol the term is liable to an action of covenant for the rent, in the same manner, and, I think, upon the same principle, as the original lessee. .But, as to him, the covenant is implied; for it is agreed on all hands, that he-is not liable after he parts with the term. If, then, this covenant is implied, as respects him, how can its nature be different, as respects the original- lessee ? If there be no covenant, except what is implied in the words, “ yielding and paying,” I can conceive no distinction between the liabilities of successive tenants. And if the obligation be merely incident to the estate, although it may be enforced by personal action, yet, if that obligation is transferred in one case, by assignment of the term, I see not how it is not in another.
Upon the whole, we think that this covenant is to be considered an implied one, so far as respects the question between these parties, and that it does not, on the face of it, import a mere personal obligation, resting upon the defendant, upon the footing of an express contract, after his tenancy has ceased. The judgment of the County Court is, therefore, affirmed.