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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 457 The defendants must have occupied the premises in question either as sub-lessees of Ingraham Co., as their assignees of the term, or as the tenants of the plaintiff; and if they are liable for the rent to the plaintiff, in either of these characters, the judgment appealed from should be affirmed.
1. Were the defendants under-tenants of Ingraham Co.? No agreement to underlet is proved; nor is there any fact proved from which an underletting could fairly be inferred. It was a ground of forfeiture of the term if Ingraham Co. let or underlet without the written consent of the plaintiff, and no such consent is pretended. It cannot be presumed that the defendants and Ingraham Co. designed to make a transfer of the lease or of the term, in a way which eo instanti forfeited it, if there was any other mode in which the defendants could acquire the possession that would not produce such a result. If we are permitted to indulge in presumption, then the presumption upon the facts proved would be that the transfer to the defendants was by assignment and not by underletting. The defendants held for the whole residue of the unexpired term of the lease, commencing in February, 1855. When the transfer is of the whole of a term, the person taking is an assignee and not an under-tenant, although there is in form an underletting. It is essential to an under-tenancy that it be of a part only of the unexpired term.
In Woodfall's Landlord and Tenant, 345, it is said, "an assignment, as contra-distinguished from an under-lease, *Page 458 signifies a parting with the whole term." Again, at page 358 of the same author, it is said, "an under-lease of the whole term amounts to an assignment." In 1st Hilliard's Abridgment, 126, § 55, it is said, "the ordinary distinction between an assignment and an under-lease is, that the former transfers the land for the whole term; the latter for only part of it."
In the absence of any evidence of the bargain under which the defendants entered into possession, and it being shown that they occupied the whole of the unexpired term of the lease to Ingraham Co., the fair presumption is that they entered for the whole of such unexpired term; and as such interest is given, not by an under-lease, but by an assignment, the presumption must be that the defendants were in as assignees, and not as under-tenants. But if they were in as under-tenants, they would not be liable to the plaintiff for the rent, either in an action on the lease or for use and occupation. (Woodfall's L. and T. 358; 1 Chitty's Pl. 36; Taylor's L. and T. 448.)
2. Were the defendants assignees of the lease? The defendants were in possession, having the lease from the plaintiff to Ingraham in their hands, and they paid the rent to the plaintiff upon that lease, for the benefit of Ingraham Co. When to these considerations are added the reasons assigned under the foregoing proposition, why the defendants were assignees and not under-tenants, the conclusion would seem to follow that the defendants were assignees of the term; they occupied for the whole residue of the term, and there is no evidence of a holding in any other character. Under these circumstances, the law presumes the defendants in as assignees of the lease. (4 Hill, 112; Taylor's L. and T. § 429.)
In Quackenboss v. Clarke (12 Wend. 555), Clarke sued Quackenboss for rent as assignee of a lease given by him to one Washington. The defendant denied the assignment. And on the trial it was shown that the lessee had sold his interest to one Hardy, but did not execute an assignment *Page 459 to him; that Hardy sold his interest to the defendant, delivered to him the lease, but did not execute an assignment. There was a verdict for the plaintiff, and the defendant brought error. SAVAGE, Ch. J., delivering the judgment of the court, says: "The fact of possession is sufficient evidence of an assignment in the first instance. The fact of an assignment is a transaction between the defendant and the lessee, of which the plaintiff is not cognizant, but the defendant is. There is no hardship, therefore, in concluding him by his possession, unless he discloses the true state of his title." The same was held inArmstrong v. Wheeler (9 Cowen, 88), and in Williams v.Woodard (2 Wend. 487), and these cases rest on 2 Phillip's Ev. 150; 3 Bos. and Pul. 461.
In 2 Phil. Ev. 150, the doctrine is stated more fully. The learned author says: "When the action is brought against the defendant as assignee of the term, and the issue is on the assignment, it will be enough for the plaintiff to give general evidence, from which the assignment may be inferred, or that the defendant is in possession of the demised premises, or has paid rent. Payment of rent by the defendant to the plaintiff, when the defendant has been let into possession by the original lessee, isprima facie evidence of the assignment of the whole term. * * * The defendant who is charged as assignee of a term, is at liberty, in an issue on the assignment, to show that he holds the premises as under-tenant to the lessee, and not as assignee."
Every fact was proved in this case required to establish an assignment to the defendants of the term. And they gave no evidence to rebut or overcome the prima facie case thus made against them.
Under the statute of frauds, the assignment of a lease must be made in writing, or it is void. If there was in fact no assignment in this case, the defendants could not be made liable. But as the law infers an assignment from certain facts proved, the inference must be of a valid *Page 460 operative assignment, such an one as was sufficient to transfer the term. It was incumbent on the defendants to prove either that there was no assignment, or that it was one void in law.
Instead of making such proof, they have satisfied themselves with the case as made by the plaintiff, and as that case fixes their liability, they should not complain.
The defendants being assignees, they were liable, on the lease, for the rent. The covenant to pay rent runs with the land, and binds the assignee, even though he is not named in it. (Jacques v. Short, 20 Barb. 269; 23 Wend. 506; 3 Den. 284; Woodfall's Landlord and Tenant, 278.) It seems to me, therefore, the defendants must be deemed assignees of the lease, and liable as such.
The pleadings are not framed to charge the defendants in that character. The complaint claimed to recover for use and occupation, disregarding altogether the lease to Ingraham Co., and a transfer thereof to the defendants. When the whole evidence was out, it was established that the plaintiff could not recover for use and occupation. They must recover, if at all, upon the covenants in the lease. And the question now is, was the court at liberty, on the trial, to amend the complaint so as to conform it to the proof; or was there such a failure of proof as defeated altogether a recovery.
To permit a recovery in this case is to carry the right of amendment as far, it seems to me, as it is possible to carry it and not overlook altogether the great end and aim of all pleading which is to inform the opposite party of the cause of action or defense which he is called upon to meet.
The courts have been very liberal in giving effect to the provision of the code that permits variances to be disregarded, and amendments to be made conforming pleadings to proofs. InRobinson v. Wheeler (25 N.Y. 252), the complaint charged that the defendant had set fire to and destroyed a wood shed on premises of which he owned the reversion. On the trial it was proved that the building *Page 461 was destroyed by the negligence of the defendant, and the plaintiff was permitted to recover.
In Byxbie v. Wood (24 New York, 607), the plaintiff claimed to recover for money obtained from him by fraud. The fraud was not found by the referee, yet the plaintiff was held entitled to recover.
In Harpending v. Shoemaker (37 Barb. 270), the action was for money had and received, c. On the trial the plaintiff offered to prove that the defendant had unlawfully taken and converted his property, sold it, and received the avails. The evidence was held competent, and the plaintiff was permitted to recover.
In all these cases, the plaintiff was permitted to recover on a case essentially different in its facts from that stated in the complaint. And it seems to me, it would be giving effect only to the principle on which these cases were decided, to hold that the plaintiff in this case was entitled to recover the rent due on the lease, notwithstanding the action is for the value of the use and occupation.
Aside from the principle on which such a recovery may be supported, the circumstances of the case justify the court in permitting the plaintiff to take judgment for the rent. 1st. The amount claimed and recovered, is the rent due by virtue of the lease. 2d. The plaintiff on the proof given by him when he rested, was entitled to recover for use and occupation. And it was the defendants' proof of the lease that produced the difficulty in the case. Even the grounds of this defense are not set out in the pleadings. He was not surprised. He held in his own hands the evidence which defeated an action for use and occupation, and which authorized a recovery on the lease.
While I entertain serious doubts whether the principles on which the right of recovery in this case must rest, will not be the source of trouble in trials at the circuit, yet I do not think it is carrying the right of amendment farther than has been done in the case cited. I am, therefore, in favor of affirming the judgment as a recovery on the *Page 462 lease; it not being suggested that the defendants were surprised.
3. Were the defendants tenants of the plaintiff, and as such, liable for use and occupation? A lease to Ingraham Co., which had two years to run from the entry of the defendants being proved, it was incumbent on the plaintiff to prove it surrendered, so that he was at liberty to re-let the premises. And if a surrender in law is proved, the defendants are liable for the rent.
A surrender is defined to be the resignation of a particular estate for life or for years to him in the immediate reversion or remainder. (Comyn's Digest, title Surrender A.) The surrender may be made by deed, conveyance in writing, or by act or operation of law. (3 R.S. 220, § 6.)
If there is a surrender in this case, it is by act or operation of law — there being no deed or conveyance in writing shown or pretended.
There is a surrender by act or operation of law, when the owner of a particular estate has been party to some act the validity of which he is by law afterwards estopped from disputing, and a lien created which would not be valid, if his particular estate had continued. (Springstein v. Schermerhorn, 12 J.R. 357; VunRensselaer v. Penniman, 6 Wend. 569; Livingston v. Potts, 16 J.R. 28.)
In order that the second lease may operate as a surrender of the first, it is essential that the lease be a valid one. It was held in Schieffelin v. Carpenter (15 Wend. 400), that a parol lease for more than a year to a third person, though he takes possession, will not operate as a sursender. The same rule was applied in Whitney v. Meyers (1 Du. 266).
It is not necessary that the second lease should be to the first lessee. If given to a third person by the consent of the first lessee, it operates as a surrender.
In Walls v. Atcheson (24 Eng. C.L. 228), it was held that a landlord could not recover rent of his tenant, where the latter had abandoned the premises during the term, and the landlord had let them to another not for the benefit of *Page 463 the original lessee. The acts of the parties were treated as a rescission of the agreement, and to have dispensed with a surrender. (See same case in 12 Eng. C.L. 565.)
In Nickells v. Atherstone (59 Eng. C.L. 943), the plaintiff had let the premises to the defendant for three years. At the end of the first year the defendant quit, and wrote a letter to the plaintiff in which he requested him to let the premises to some other person. The plaintiff did let them to another for three years, and the new tenant entered and paid two quarters' rent, and became insolvent. The action was brought for the balance of the rent due by virtue of the lease to the defendant, after applying the amount paid by the new tenant. The question was submitted to the jury whether the plaintiff had accepted the new tenant in substitution and discharge of the defendant. The jury so found. The judge instructed them that if they so found, the verdict should be for the defendant. The plaintiff had leave to move for liberty to enter a verdict for himself, a rule nisi having been obtained. The court held that there was a surrender of the old lease, by operation of law.
In Smith v. Niver (2 Barb. 180), it was held by HARRIS, J., that where a landlord has consented to a change of tenancy, and has permitted a change of occupancy and received rent from the new tenant as an original and not a subtenant, he cannot afterwards charge the original tenant for rent accruing during the occupation of the new tenant.
I have referred to these cases because they are the most favorable of any I can find to the plaintiff, and yet they do not go far enough to sustain this action against the defendants as holding directly from the plaintiff.
It will be seen that in all of the cases a mutual agreement between the lessor and the original lessee that the lease terminates, must be shown. It is not necessary that the agreement should be express; it may be inferred from the conduct of the parties. The occupancy by some other than the lessee is of course a circumstance to show a surrender; *Page 464 but as the new occupant may enter as the tenant of the lessee, or as his assignee, or even as a trespasser, and thus his occupancy be consistent with the continuance of the first lease, it is absolutely essential that it should be clearly proved that the original lessee assented to the termination of his term. In short, it must be proved that the lessor and lessee mutually agreed to a surrender of the term, and that proved, the original tenant is no longer liable; but the new tenant (if there is one) is liable.
What evidence is there in this case, of an assent by Ingraham Co. to a surrender of their lease? No witness has testified directly to any such fact. It does not appear that they and the plaintiff ever spoke together upon the subject. The fact that the defendants held their counter-part of the lease; that they (Ingraham Co.), quit possession, and that the defendants entered, occupied and paid rent, and even claimed to be tenants, is entirely consistent with a continuance of the original lease, and occupancy by the defendants as under-tenants or assignees of the lessees. There is not a particle of proof that Ingraham Co. have ever consented to a letting by the plaintiff to the defendants, or even that they knew that any such thing was contemplated.
For aught that appears in this case, the defendants are liable to Ingraham Co. for the rent of the premises during the whole period they were in possession.
In Drury Lane Co. v. Chapman (1 Carr. Kir. 14), it appeared that the plaintiffs had rented certain counters in the saloon of the theatre to Mrs. Chapman, mother of the defendant, for some years; she entered and occupied less than a year, and died. The defendant applied to the plaintiffs to take him as their tenant, and they accepted, and he entered and paid rent for a part of the term. The plaintiffs sued him to recover for the use and occupation of the premises. The defendant put in evidence the lease to his mother, and letters on her estate to another son. The court put it to the jury to say whether the defendant entered *Page 465 under a new contract with the plaintiffs for the use of the premises, or whether he entered under the lease to his mother. The jury found he entered under a new agreement, and there was a verdict for the plaintiff. The court refused a rule to show cause why there should not be a new trial. If this case was rightly decided, it follows that it is wholly immaterial whether there is an outstanding lease when the new agreement is made. It is enough if the plaintiff is able to prove the new agreement; the defendant is then estopped from disputing his title. In the case cited, it is obvious that by the death of Mrs. Chapman her lease was not annulled. It passed to her representatives, who were entitled to the use and occupation of the premises, and the defendant was in law liable to them. In Doe v. Wood (14 Man. G. 681), H. had leased certain premises of Lady H., and died, leaving a widow. She continued to occupy and pay rent to Lady H.J.H. took out letters of administration on H.'s estate, and after such letters taken, the widow, with the knowledge of the administrator, occupied and paid rent to Lady H., and he never objected to such payment or made demand for the rent. The administrator brought ejectment against the widow and her second husband, and it was held that there was no evidence of surrender, by operation of law, so as to create the relation of landlord and lenant between Lady H. and the widow, and the plaintiff recovered.
These two cases cannot stand together. The first is in utter disregard of the well-settled rule that the lessor cannot recover against a third person for the use and occupation of premises, unless he shows a surrender of the original lease. In the case last cited, it is quite clear that there ought not to have been a recovery, if the widow was the tenant of Lady H.
There may be a recovery by the original lessor against a third person who enters during the running of a lease, under an express agreement with such lessor for the occupancy, when this entry is under such contract exclusively, *Page 466 and has no connection whatever with the original lease; and when the original lessee has omitted to assert any claim to the premises, or for the rent thereof. In such case the new tenant may properly be held estopped from disputing the title of his lessor. (Phipps v. Sculthorpe, 1 Barn. Ald. 50.)
But in this case the tenants insist that they entered under Ingraham Co., and show the lease, and prove payment of rent by him on the original lease, for the benefit of the original lessees.
Believing the defendants are liable, as assignees of the term, for the rent claimed, I am in favor of affirming the judgment, with costs.
Judges DAVIES, WRIGHT, SELDEN, and HOGEBOOM were also for affirmance.