[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 460 We agree with the General Term in the result which it adjudged, and should adopt its opinion but for its discussion of a subject not necessarily involved in the case, and the soundness or unsoundness of which we ought not to determine in the present action. That opinion intimates that the effect of plaintiff's successful re-entry upon a part of the premises leased in fee may be to extinguish the rent upon the remainder. The defendant, however, makes no such claim, but concedes the plaintiff's right to re-enter upon such remainder for rent in arrear, and the whole controversy is simply what amount of such rent should be stated in the judgment, as the basis of a possible redemption. The case, therefore, proceeds upon the assumption that there is rent in arrear which should be stated in the judgment, and that the amount is either the whole unpaid rent, treating the lease as an entirety, or the proportionate share of the sixty acres and of the ten acres, treating the rent as having been apportioned.
These manor leases have been held to create a rent charge rather than a rent service; and while at common law it was said that a rent charge could not be apportioned because it issued out of the whole land, we have held that such an apportionment is possible by the concurring assent or action of both the landlord and the tenant. (Van Rensselaer v. Hays, 19 N.Y. 76; VanRensselaer v. Chadwick, 22 id. 34, 35.) And so, the possibility existing, we are concerned only with the facts which are claimed to have effected an apportionment. The plaintiff recovered in ejectment 100 acres of lot 378, which contained the sixty acres additional involved in this action as held under the lease to Martin Tubbs, and the day of redemption has passed. In like manner he recovered and holds the whole of lot 402, except the ten acres owned by the defendant under the lease *Page 462 to Abbott and Russ, and which ten acres, with the sixty, constitute the lands in controversy. The opinion of the General Term points out very clearly the injustice of a rule which would permit a lessor in fee to have the bulk of the land and at the same time all the rent in arrear, and suggests adequate reasons in support of a different result. The severance of the lease by the landlord in the pursuit of his remedy was preceded by long continued payments by the owners of the parcels in controversy measured by the proportion which their holdings bore to the full quantity of the two lots, and this had continued for many years. These pro rata payments were accepted by the lessor, and although credited, as is said, upon the whole lease as an entirety, do not appear to have been accepted upon that condition. And when that long course of dealing is followed by a re-entry upon a part of the land, leaving the defendant undisturbed in the possession of his seventy acres, it would seem as if a severance of the rent by the act and assent of the landlord was a reasonable and just inference.
But beyond that, the application and operation of the common law has been seriously affected by the statutory provisions for redemption, and those which seem to place it in the power of occupants of separate parcels to compel a severance of the action when the remedy sought is ejectment. It does not here appear that the severance relied upon was by compulsion and against the will of the lessor (Code of Civ. Pro. §§ 1504, 1505, 1507, 1516), and treating it as voluntary and in connection with the actual apportionment made and accepted, we think we are justified in affirming the judgment, without, for the present, going beyond the facts before us.
The judgment should be affirmed, with costs.
All concur, except PECKHAM, J., not sitting.
Judgment affirmed. *Page 463