Wendell, 63, upon the same interpretation of the rights of the mortgagor which was given in the former case, it was ruled that a mortgagee who has not taken possession of the demised premises is not liable for rent, and that the law in this respect is in New York different from what it is in England. It is contended, on behalf of the plaintiff in error, that the doctrine in Eaton v. Jacques, and in the several decisions from the state courts in conformity therewith, is inconsistent with that laid down by this court in the cases of Stelle v. Carroll, in the 12th of Peters, 201 (Doм. REL., §§ 501–503), and of Van Ness v. Hyatt, in the 13th of Peters, 294. With regard to this position it may be remarked that the questions brought directly to the view of the court, and regularly and necessarily passed upon in these cases, did not relate to the rights and responsibilities of the assignee of a term, or to what it was requisite should be done for the completion of the one or the other. Giving every just latitude to these decisions, all that can be said to have been ruled by the former is, that by the common law a wife is not dowable of an equity of redemption, and by the latter that an equitable interest cannot be levied upon by an execution at law. This court, therefore, cannot properly be understood as having, in the cases of Stelle v. Carroll, and Van Ness v. Hyatt, established any principle which is conclusive upon the grounds of defense set up by the third and fourth pleas of the defendants. Nor do we feel called upon, in the present case, to settle that principle; for let it be supposed that such a principle has been most explicitly ruled by this court, still, that supposition leaves open the inquiry, how far the establishment of such a principle can avail the plaintiffs in the relation in which they stand to the other covenantees in the deed from Coleman. In other words, whether the covenant for repairs, contained in that deed, was not essentially a joint covenant; one in which the interest was joint as to all the grantees, and with respect to which, therefore, no one of them, or other portion less than the whole, could maintain an action?

§ 27. A covenant with several lessors to keep premises in repair is joint, although the lessors hold in unequal proportions and the rent is reserved to them severally.

The doctrines upon the subjects of joint and several interests under a deed, and of the necessity. or propriety for conformity with remedies for enforcing those interests to the nature of the interests themselves, have been maintained by a course of decision as unbroken and perspicuous, perhaps, as those upon which any other rule or principle can be shown to rest. They will be found to be the doctrines of reason and common sense.

Beginning with Windham's Case, 3 Reports, part 5, 7a, 76, it is said that joint words will be taken respectively and severally, 1. With respect to the several interests of the grantors. 2. In respect of the several interests of the grantees. 3. In respect to that the grant cannot take effect but at several times. 4. In respect to the incapacity and impossibility of the grantees to take jointly. 5. In respect of the cause of the grant or ratione subjectæ materiæ. The next case which we will notice is Slingsby's Case, in the same volume, 18a, 18b, decided in the exchequer. In this case it was ruled that a covenant with several et cum quolibet and qualibet eorum is a several covenant. only where there are several interests. Where the interest is joint, the words cum quolibet et qualibet eorum are void, and the covenant is joint. In the case of Eccleston and wife v. Clipsham, the law is stated that, although a covenant be joint and several in the terms of it, yet if the interest and cause of action be joint, the action must be brought by all the covenantees. And on the

other hand, if the interest and cause of action be several, the action may be brought by one only. 1 Saunders, 153. The learned annotator upon Sir Edmund Saunders, in his note to the case of Eccleston v. Clipsham, has collected a number of cases to this point and others, which go to show that where there are several joint covenantees, and one of them shall sue alone without averring that the others are dead, the defendant may take advantage of the variance at the trial, and that the principle applicable to such a case is different from that which prevails where the action is brought against one of several joint covenantors or obligors who can avail themselves of the irregularity by plea in abatement only. The same rule with regard to the construction of covenants and to the legal rights and position of the parties thereto in courts of law may be seen in the cases of Anderson v. Martindale, 1 East, 497; Withers v. Bircham, 3 Barn. & Cress., 255; James v. Emery, 5 Price, 533.

It remains now to be ascertained how far the parties to the case before us come within the influence of principles so clearly defined, and so uniformly maintained in the construction of covenants and in settling the legal consequences flowing from that interpretation. The instrument on which the plaintiffs instituted their suit was a lease from the plaintiffs and various other persons interested in different proportions of the property demised, and by the terms of which lease rent was reserved and made payable to the several owners of the premises in the proportion of their respective interests. So far as the reservation and payment of rent to the covenantees, according to their several interests, made a part of the lease, the contract was several, and each of the covenantees could sue separately for his portion of the rent expressly reserved to him. But in this same lease there is a covenant between the proprietors and the lessee, that the latter shall keep the premises in good and tenantable repair, and shall return the same to those proprietors in the like condition; and it is upon this covenant or for the breach thereof that the action of the plaintiffs has been brought. Is this a joint or several covenant? It has been contended that it is not joint, because its stipulations are with the several covenantees jointly and severally. But the answer to this position is this: Are not all the covenantees interested in the preservation of the property demised, and is any one or a greater portion of them exclusively and separately interested in its preservation? And would not the dilapidation or destruction of that property inevitably affect and impair the interests of all, however it might and necessarily would so affect them in unequal amounts?

It would seem difficult to imagine a condition of parties from which an instance of joint interests could stand out in more prominent relief. This conclusion, so obvious upon the authority of reason, is sustained by express adjudications upon covenants essentially the same with that on which the plaintiffs in this case have sued.

The case of Foley v. Addenbrooke, 4 Ad. & Ell. (N. S.), 197. The declaration in covenant stated that Foley and Whitby had demised to Addenbrooke lands and iron mines of one undivided moiety, of which Foley was seized in fee, Addenbrooke covenanting with Foley and Whitby and their heirs to erect and work furnaces and to repair the premises and work the mines; that Foley was dead, and plaintiff, Foley's heir, and breaches were assigned as committed since the death of Foley; that Addenbrooke, and since his death his executors, had not worked the mines effectually, nor repaired the premises, nor left them in repair. To this declaration it was pleaded that Whitby, one of the tenants in common, and one of the covenantees, who was not joined in the action, still

survived. This plea was sustained upon special demurrer, and Lord Denman, in delivering the opinion of the court, says: "In the present case the covenants for breach of which the action is brought are such as to give to the covenantees a joint interest in the performance of them; and the terms of the indenture are such that it seems clear that the covenantees might have maintained a joint action for the breach of any of them. Upon this point the case of Kitchen v. Buckley, 1 Lev., 109, is a clear authority; and the case of Petrie v. Bury, 3 Barn. & Cress., 353, shows that if the covenantees could sue jointly, they are bound to do so."

The case of Bradburne v. Botfield, in the exchequer, reported in the 14th of Meeson & Welsby, 559, was an action of covenant upon a lease by seven different lessors jointly according to their several rights and interests in certain coal mines to the defendant, yielding and paying certain rents to the lessors respectively, and to their respective heirs and assigns according to their several and respective estates, rights and interests in the premises; and the defendant covenanted with all the above parties and with each and every of them, their and each and every of their heirs, executors, administrators and assigns, to repair the premises, and to surrender them in good repair to the lessors, their heirs and assigns respectively, at the end of the term. The declaration then deduced to the plaintiff a title to the moiety of one of the lessors, and alleged as breaches the non-repair of the premises and the improper working of the mines. To this declaration it was pleaded that one of the original lessors who had survived all the other covenantees was still living. It was held, upon demurrer, that the covenants for repairs and for working the mines were in their nature joint and not several, and that the surviving covenantee ought to have brought the action. Baron Parke, who delivered the opinion of the court, thus speaks: "We have looked, since the argument, into the lease now set out on oyer and into all the authorities cited for the plaintiff, and are still of opinion that he cannot recover upon the covenants stated in the declaration. It is impossible to strike out the name of any covenantee, and all the covenantees must, therefore, necessarily sue upon some covenant; and there appear to us to be no covenants in the lease which are of a joint nature, if those declared upon are not, or which would be in gross, if the persons entitled to the legal estate had alone demised; for all relate to and affect the quality of the subject of the demise or to the mode of enjoying of it."

We regard the cases just cited as directly in point, and as conclusive against the claim of the plaintiffs to maintain an action upon the covenant for repairs in the lease to Coleman, apart from and independently of the other covenantees in that lease jointly and inseparably interested in that covenant with the plaintiffs. We therefore approve the judgment of the circuit court, that the plaintiffs take nothing by their writ and declaration, but that the defendants recover against them their costs about their defense sustained as by the said court was adjudged; and we order the said judgment of the circuit court to be affirmed.

UNITED STATES v. BOSTWICK.

(4 Otto, 53-69. 1876.)

APPEAL from the Court of Claims.

STATEMENT OF FACTS.- This action was brought to recover rent and damages on account of the occupation of certain premises by the United States. The contract under which the premises were occupied was made with Lovett,

trustee of Mrs. Fletcher.. Application being made by Gen. Mansfield for a lease of the premises to the United States as a hospital, Lovett, in a note to Gen. Mansfield, stated his terms for the "mansion and lower grounds of Kalorama," as follows: "The upper grounds contain about seventy acres, which may be occupied by the quartermaster for horses and wagons, or whatever else may be desired, at the rent of $100 per month." In a second note he offered to the government, "for the purposes of a hospital," the part of the premises "comprising the house and porter's lodge, together with about thirty acres of land immediately surrounding and including both sides of Rock Creek, bordering the same," for a period of three years, with privilege to the government to renew the lease for three years longer, at $450 per month. A furnace and stove were to be left in the building for the use of the government, and it was to be stipulated that the trees, shrubbery and grounds should be strictly protected, "and any unnecessary injury to the same to be compensated for by the government; the buildings to be kept in repair by the government, and to be left in as good repair as ordinary wear and tear will permit." Also that the government would repair fences already destroyed by the troops.

Subsequently Gen. Mansfield sent the following note to Lovett: "As soon as vacated, within two weeks the United States will hire the whole property of Thomas R. Lovett, trustee of Mr. Charles F. Fletcher, etc., above, on the following terms, inclusive of his upper lot, and all his land and privileges, for $500 per month, for the period of one year, with the privilege of keeping it at least three years, if desirable for all purposes." The premises were occupied from August 23, 1861, to September 30, 1867. From August, 1861, to June, 1862, rent was paid at the rate of $500 per month; from the latter date to February, 1865, $250; and from 1865 to September, 1867, $200 per month, a receipt being given for each monthly payment.

The damages claimed were on account of the destruction of the main house by fire, destruction of fences, walls, trees, shrubbery, etc., and use of stone and gravel.

§ 28. Construction of the correspondence in this case as to the terms of the con

tract.

Opinion by WAITE, C. J.

In the determination of this cause, it is necessary at the outset to ascertain definitely the terms of the contract under which the United States occupied the property of the petitioner. On the one hand it is claimed that the proposition of Mr. Lovett was accepted by General Mansfield with modifications, and that all the stipulations suggested by him are included in the contract as finally entered into, unless modified or rejected in terms by the note of General Mansfield. On the other hand it is contended by the United States that the note of General Mansfield, instead of being an acceptance of the proposition, was a rejection of it, with an offer of new terms, which, when acceded to by Mr. Lovett, embraced all there was of the contract as made. The latter, we think, is the true construction of the correspondence. We know that, when a contract is entered into by correspondence, the whole correspondence must be considered in determining what the parties have agreed to; but we also know that both parties must assent to the proposed agreement before either is bound by it. Here General Mansfield has nowhere indicated a willingness to accept any of the terms offered him, but, rejecting all, has made a new offer of his own. No reference whatever is made by him to any of the special stipulations suggested by Mr. Lovett. All these are laid aside, and he states the terms

upon which the United States will hire the property. The words "as above," where they occur in his note, are used to designate the property, not to extend the offer. In short, Mr. Lovett proposed his terms, and General Mansfield bis. Mansfield's were accepted, but Lovett's were not.

This being the case, the contract is one by which Mr. Lovett agreed to let, and the United States to hire, the premises described for the term of one year, with the privilege of three, at a rent of $500 a month, and without restriction as to the use to which the property might be put. The United States agree to nothing in express terms, except to pay rent and hold for one year. $29. Implied covenant in every lease to so use the property as not unnecessarily to injure it.

But in every lease there is, unless excluded by the operation of some express covenant or agreement, an implied obligation on the part of the lessee to so use thẻ property as not unnecessarily to injure it, or, as it is stated by Mr. Comyn, "to treat the premises demised in such manner that no injury be done to the inheritance, but that the estate may revert to the lessor undeteriorated by the wilful and negligent conduct of the lessee." Com. Land. & Ten., 188. This implied obligation is part of the contract itself, as much so as if incorporated, into it by express language. It results from the relation of landlord and tenant between the parties which the contract creates. Holford v. Dunnett, 7 M. & W., 352. It is not a covenant to repair generally, but to so use the property as to avoid the necessity for repairs, as far as possible. Horsefall v. Mather, 7 Holt, 9; Brown v. Crump, 1 Marsh., 569.

There are in this contract no stipulations to take the place of or in any manner restrict this implied obligation on the part of the United States growing out of their relation to the petitioner as his lessees. They had the free and unrestricted right to use the property for any and all purposes, but were bound to so conduct themselves in such use as not to cause any unnecessary injury. Whatever damages would necessarily result from a use for the same purpose by a good tenant must fall upon the lessor. All that the relation of landlord and tenant implies in this particular is, that the tenant, while using the property, will exercise reasonable care to prevent damage to the inheritance. His obligation rests upon the maxim sic utere tuo ut alienum non lædas. If he fails in this, he violates his contract, and must respond accordingly.

$30. Liabilities of United States in contracting with citizens.

The United States, when they contract with their citizens, are controlled by the same laws that govern the citizen in that behalf. All obligations which would be implied against citizens under the same circumstances will be implied against them. No lease in form was ever executed in this case; but the contract, followed by the delivery of possession and occupation under it, is equivalent for the purposes of this action to a lease duly executed, containing all the stipulations agreed upon.

31. Petitioner entitled to rent at $500 per month to end of first year.

Such being the agreement of the parties, it remains only to consider the questions arising under it, as they appear in the record. 1. As to rent. The United States hired for a year absolutely, at the agreed rent of $500 a month, and occupied during the whole of that term. They therefore, by their agreement, were expressly bound to pay rent at that rate for the whole of the year. This they have paid in full to June 30; but after that, until the end of the year, August 23, 1862, their payments have been only at the rate of $250 a month. Payment by a debtor of a part of his debt is not a satisfaction of