For instance, the question, what was a sufficient assignment to
give an assign the benefit of a covenant for quiet enjoyment, was
argued and decided on the authority of the old cases of warranty.
/4/
[379] The assign, as in warranty, came in under the old covenant
with the first covenantee, not by any new right of his own. Thus,
in an action by an assign on a covenant for further assurance,
the defendant set up a release by the original covenantee after
the commencement of the suit. The court held that the assignee
should have the benefit of the covenant. "They held, that
although the breach was in the time of the assignee, yet if the
release had been by the covenantee (who is a party to the deed,
and from whom the plaintiff derives) before any breach, or before
the suit commenced, it had been a good bar to the assignee from
bringing this writ of covenant. But the breach of the covenant
being in the time of the assignee, ... and the action brought by
him, and so attached in his person, the covenantee cannot release
this action wherein the assignee is interested." /1/ The
covenantee even after assignment remains the legal party to the
contract. The assign comes in under him, and does not put an end
to his control over it, until by breach and action a new right
attaches in the assign's person, distinct from the rights derived
from the persona of his grantor.
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