suffered it to go to decay, so that the water-power was destroyed, and the plaintiff's mill rendered valueless. The court held that there was no implied covenant to keep the canal in repair; that the express provision for compensation in one case excluded the implication of such right in all others, and that the plaintiff was without remedy. This case, like the one under consideration, was decided upon a demurrer by the defendants.

§ 24. A covenant that a landlord will make repairs is never implied. The tendency of modern decisions is not to imply covenants which might and ought to have been expressed, if intended. Aspdin v. Austin, 5 Q. B., 671; Pilkington v. Scott, 15 Mees. & W., 657. A covenant is never implied that the lessor will make any repairs. Pomfret v. Ricroft, Williams' Saunders, 321, 322, note, 1; Kellenberger v. Foresman, 13 Ind., 475; Mumford v. Brown, 6 Cowen, 475. The tenant cannot make repairs at the expense of the landlord unless by special agreement. If a demised house be burned down by accident, the rent does not cease. The lessee continues liable as if the accident had not occurred. Moffat v. Smith, 4 N. Y., 126. If, in such a case, the landlord receives insurance money, the tenant has no equity to have it applied to rebuilding, or to restrain the landlord from suing for the rent until the structure is restored. Leeds v. Cheetham, 1 Sim., 146; Loft v. Dennis, 1 Ell. & Ell., 474. The Trustees of the Wabash and Erie Canal v. Brett is an authority strikingly apposite in this case. In the leases set out in the bill, as in the lease in that case, the parties provided but one remedy for a failure of water. That is, an abatement of the rent in proportion to the extent and time of the deficiency. The contract gives none other. Beyond this it is silent upon the subject. This court cannot interpolate what the contract does not contain. We can only apply the law to the facts as we find them. The appellant is entitled to the remedy specified. Expressum facit cessare tacitum. Neither a court of equity nor a court of law can aid him to any greater extent. This sweeps from the case the claims set up in the bill by the appellant for offset, repairs, recoupment and damages, leaving to be considered only the claim for a reduction of the rents in the manner stipulated by the parties.

The appellant avers that he abandoned the premises covered by the second lease, that the appellees acquiesced, and that his title thus became vested in them by reverter. This is repelled by the verdict and judgment in the action of ejectment. He insists that, according to the provision referred to in the leases, he is entitled to a reduction of the rents specifically demanded before the commencement of the action of ejectment. The plaintiffs could not have

recovered without proving to the satisfaction of the jury that the exact amount demanded was due. Any failure in this respect would have been fatal to the action. Then was the time for the appellant to assert and prove this claim. He cannot do it now. The judgment is conclusive.

§ 25. Relief against judgment in ejectment for recovery of estate for nonpayment of rent.

The bill claims reductions of the rents for failure of water from the 2d of October, 1857, when the title of the defendants accrued, down to the 1st of May, 1865, when the last instalments, before the filing of the bill, became due, amounting in the aggregate to $2,649. The rents, during the same period, amounted to a much larger sum. Conceding the appellant's demand to be correct, he should at least have tendered payment of the difference between these two amounts, and interest, before bringing his bill. In not alleging that he had done so the bill is fatally defective.

A case is not presented upon which a court of equity, according to the settled principles of its jurisprudence, is authorized to interpose. The spirit manifested by the appellant throughout the litigation between the parties, as disclosed by the bill, is not persuasive to such a tribunal to lend him its aid. We think the demurrer was well taken. The decree of the circuit court is affirmed.

CALVERT v. BRADLEY.

(16 Howard, 580-599. 1853.)

ERROR to the Circuit Court for the District of Columbia.
Opinion by MR. JUSTICE DANIEL.

STATEMENT OF FACTS.- The plaintiffs brought their action of covenant, in the court above mentioned, against the defendants, to recover of them in damages the value of repairs made by the plaintiffs upon certain property in the city of Washington, known as the National Hotel, which had been on the 17th of April, 1844, leased by the plaintiffs, together with Roger C. Weightman, Philip Otterback, William A. Bradley, and Robert Wallach, to Samuel S. Coleman, for the term of five years. This property was owned by the lessors in shares varying in number as to the several owners, and by the covenant in the deed of demise; the rent was reserved and made payable to the owners severally in proportion to their respective interests, the interests of the plaintiffs only in the shares owned by them being joint. In addition to the covenant on the part of the lessee for payment to each of the lessors of his separate proportion of the rent, there is a covenant by the lessee for the payment of the taxes and assessments which might become due upon the premises during the term, and a further covenant that he would, during the same time, "keep the said hotel with the messuages and appurtenances in like good order and condition as when he received the same, and would, at the expiration of the said term, surrender them in like good repair." On the 1st of January, 1847, the lessee, Coleman, assigned all his interest in the lease to Cornelius W. Blackwell, who entered and took possession of the premises. On the 17th of February, 1848, Blackwell, by deed-poll, conveyed to the defendants, Bradley and Middleton, all the goods, chattels, household stuffs, and furniture then upon the premises, together with the good will of the said hotel and business. and the rest and residue of the unexpired term and lease of said Blackwell in the premises upon trust to permit the said Blackwell to remain in possession and enjoyment of the property until he should fail to pay and satisfy certain notes and responsibilities specified in the instrument; but upon the failure of Blackwell to pay and satisfy those notes and responsibilities, the trustees were to take possession of the property conveyed to them, and to make sale thereof at public auction for the purposes in the deed specified. Blackwell remained in possession after the execution of the deed to the defendants, until the 6th of March, 1849, when he absconded, leaving a portion of the rent of the premises in arrear. The property having been thus abandoned by the tenant, an agreement was entered into between the owners of the property and the defendants, that a distress should not be levied for the rent in arrear, but that the defendants should sell the effects of Blackwell left upon the premises, and from the proceeds thereof should pay the rent up to the 1st day of May, 1849,- the defendants refusing to claim or accept any title to, or interest in, the unexpired portion of the lease, or to take possession of the de

mised premises. In this state of things the plaintiffs, being the largest shareholders in those premises, proceeded to take possession of and to occupy them and to put upon them such repairs as by them were deemed necessary, and have continued to hold and occupy them up to the institution of this suit. The action was brought by the plaintiffs alone, and in their own names, to recover their proportion of the damages alleged by them to have been incurred by the breach of the covenant for repairs contained in the lease to Coleman, which was assigned to Blackwell, and by the latter to the defendants by the deed-poll of February 17, 1848.

To the declaration of the plaintiffs the defendants pleaded four separate pleas. To the third and fourth of these pleas the defendants demurred, and as it was upon the questions of law raised by the demurrer to these pleas that the judgment of the court was given, we deem it unnecessary to take notice of those on which issues of fact were taken. The third and fourth pleas present substantially the averments that the deed from Blackwell to the defendants was simply and properly a deed of trust made for the security of certain debts and liabilities of Blackwell, therein enumerated; and giving power to the defendants, in the event of the failure on the part of Blackwell to pay and satisfy those responsibilities, to take possession of the subjects of the trust and dispose of them for the purposes of the deed. That this deed was not in law a full assignment of the term of Blackwell in the demised premises, and never was accepted as such, but on the contrary was always refused by the defendants as such; and that the plaintiffs by their own acts would have rendered an acceptance and occupation by the defendants, as assignees of the term, impracticable, if such had been their wish and intention, inasmuch as the plaintiffs themselves had, upon the absconding of Blackwell, the assignee of Coleman, entered upon and occupied the demised premises, and held and occupied the same up to the institution of this action, and had, during that occupancy, and of their own will, made such repairs upon the premises as to the plaintiffs has seemed proper or convenient.

Upon the pleadings in this cause two questions are presented for consideration; and comprising as they do the entire law of the case, its decision depends necessarily upon the answer to be given to those questions. The first is whether the plaintiffs in error, as parties to the deed of covenant on which they have declared, can maintain their action without joining with them as co-plaintiffs the other covenantees?

The second is whether the defendants in error, in virtue of the legal effect and operation of the deed to them from Blackwell, the assignee of Coleman, and without having entered upon the premises in that deed mentioned, except in the mode and for the purposes in the third and fourth pleas of the defendants set forth and admitted by the demurrer, were bound for the fulfillment of all the covenants in the lease to Coleman as regular assignees would have been? The affirmative of both these questions is insisted upon by the plaintiffs.

The converse as to both is asserted by the defendants, who contend as to the first, that the covenant for repairs declared on, and of which profert is made, is essentially a joint contract, by and with all the covenantees, and could not be sued upon by them severally; and that the demurrer to the third and fourth pleas, reaching back to and affecting the first vice in the pleadings, shows upon the face of the declaration, and of the instrument set out in hæc

verba, a restriction upon the plaintiffs to a joint interest, or a joint cause of action only with all their associates in the lease.

2. That the deed from Blackwell to the defendants, being a conveyance of a leasehold interest in the nature of a trust for the security of a debt, by the terms of which conveyance the grantor was to remain in possession till default of payment, and the grantees not having entered into possession of the demised premises, which were entered upon and held by the plaintiffs themselves, the defendants could not be bound, under the covenant for repairs, to the premises never in their possession and over which they exercised no control. § 26. A mortgagee of a term of years, who has not taken possession, is not to be considered as a complete assignee, and is not chargeable with the real covenants of the assignor.

The second of the questions above mentioned, as presented by the pleadings, will be first adverted to. This question involves the much controverted and variously decided doctrine as to the responsibility of the mortgagee of leasehold property, pledged as security for a debt, but of which the mortgagee has never had possession, for the performance of all the covenants to the fulfillment whereof a regular assignee of the lease would be bound.

With regard to the law of England, as now settled, there seems to be no room for doubt that the assignee of a term, although by way of mortgage or as a security for the payment of money, would be liable under all the covenants of the original lessee. In the case of Eaton v. Jacques, reported in the second volume of Douglas, page 455, this subject was treated by Lord Mansfield with his characteristic clearness and force; and with the strong support of Justices Willes, Ashurst and Buller, he decided that the assignee of a lease by way of mortgage or as a mere security for money, and who had not possession, is not bound for or by the covenants of the lessee. The language of his lordship in this case is exceedingly clear. "In leases," said he, "the lessee being a party to the original contract, continues always liable notwithstanding any assignment; the assignee is only liable in respect of his possession of the thing. He bears the burden while he enjoys the benefit, and no longer; and if the whole is not passed, if a day only is reserved, he is not liable. To do justice it is necessary to understand things as they really are, and construe instruments according to the intent of the parties. What is the effect of this instrument between the parties? The lessor is a stranger to it. He shall not be injured, but he is not entitled to any benefit under it. Can we shut our eyes and say it is an absolute conveyance? It was a mere security, and it was not, nor ever is, meant that possession shall be taken until the default of payment and the money has been demanded. The legal forfeiture has only accrued six months, and if the mortgagee had wanted possession he could not have entered via facti. He must have brought an ejectment. This was the understanding of the parties, and is not contrary to any rule of law." The same doctrine was sanctioned in the case of Walker v. Reeves, to be found in a note in Douglas, vol. 2, p. 461. But by the more recent case of Williams v. Bosanquet, 3 Moo. J. B., 500, it has been decided that when a party takes an assignment of a lease by way of mortgage as a security for money lent, the whole interest passes to him, and he becomes liable on the covenant for the payment of the rent, though he never occupied or became possessed in fact. This decision of Williams v. Bosanquet is founded on the interpretation put upon the language of Littleton in the fifty-ninth and sixty-sixth sections of

the Treatise on Tenures-in the former of which that writer remarks: "That it is to be understood that in a lease for years by deed or without deed, there needs no livery of seizin to be made to the lessee, but he may enter when he will by force of the same lease;" and in the latter, " also, if a man letteth land to another for a term of years, albeit the lessor dieth before the lessee entereth into the tenements, yet he may enter into the same after the death of the lessor, because the lessee, by force of the lease, hath right presently to have the tenements according to the force of the lease." And the reason, says Lord Coke, in his commentary upon these sections, is "because the interest of the term doth pass and rest in the lessee before entry, and therefore the death of the lessor cannot devest that which was vested before." True it is, he says, "that to many purposes he is not tenant for years until he enter, as a release to him is not good to increase his estate before entry." Co. Litt., 46, b. Again it is said by this commentator that "a release which inures by way of enlarging an estate cannot work without possession, but by this it is not to be understood that the lessee hath but a naked right, for then he could not grant it over; but seeing he hath enteresse termini before entry, he may grant it over, albeit for want of actual possession he is not capable of a release to enlarge his estate."

Whatever these positions and the qualifications accompanying them may, by different minds, be thought to import, it is manifest from the reasoning and the references of the court in the case of Williams v. Bosanquet, that from them have been deduced the doctrine ruled in that case, and which must be regarded as the settled law of the English courts, with respect to the liabilities of assignees of leasehold estates. But clearly as this doctrine may have been established in England, it is very far from having received the uniform sanction of the several courts of this country, nor are we aware that it has been announced as the settled law by this court. Professor Greenleaf, in his edition of Cruise, title 15, Mortgage, §§ 15, 16, p. 111, inclines very decidedly to the doctrine in Eaton v. Jacques, Doug., 455. After citing the cases of Jackson v. Willard, 4 Johns., 41; of White v. Bond, 16 Mass., 400; Waters v. Stewart, 1 Caines' Cases, 47; Cushing v. Hurd, 4 Pick., 253, ruling the doctrine that a mortgagee out of possession has no interest which can be sold under execution, but that the equity of redemption remaining in the mortgagor is real estate, which may be extended or sold for his debts, and further, that the mortgagee derives no profit from the land until actual entry or other exertion of exclusive ownership, previous to which the mortgagor takes the rents and profits without liability to account, Mr. Greenleaf comes to the following conclusion, namely: "On these grounds it has been held here as the better opinion, that the mortgagee of a term of years, who has not taken possession, has not all the legal right, title and interest of the mortgagor, and, therefore, is not to be treated as a complete assignee so as to be chargeable on the real covenants of the assignor."

In the case of Astor v. Hoyt, reported in the 5th of Wendell, 603, decided after the case of Williams v. Bosanquet, and in which the latter case was considered and commented upon, the supreme court of New York, upon the principle that the mortgagor is the owner of the property mortgaged against all the world, subject only to the lien of the mortgagee, declare the law to be "that a mortgagee of a term not in possession cannot be considered as an assignee, but if he takes possession of the mortgaged premises he has the estate cum onere." In the case of Walton v. Cronly's Administrator, in the 14th of