By the sale under the judgment of foreclosure, the estates of Stenton, the lessor, and of Boughton, the tenant, in the land, were absolutely barred and extinguished. There being a surplus, the question is, whether the tenant is entitled to any part of it. I think he is not. He had, it is true, an estate in the land, but it was a chattel interest only. (1 R. S. 722, § 5. 2 Bl. Com. 386.) All his estate was a right to the temporary use and possession of the premises, for a stipulated renumeration by the payment of rent, and it rested solely in contract. Chancellor Kent defines a lease for years to be “ a contract for the possession and profits of land for a determinate period, with the recompense of rent.” (4 Kent’s Com. 85. Add. Cont. 333.) When the lessor’s title was cut off by the foreclosure, this contract or lease become void. The estate of the lessee did not survive the contract, by which it was created. The rule is correctly stated by Mr. Taylor, in his treatise, as follows: “ Whenever the estate, which the lessor had at the time of making the lease, is defeated, or in any other manner determined, the lease is extinguished with it. (Tay. L. and. T. § 519.) The lessee cannot claim any rights under the lease, without paying rent, and the lessor cannot claim rent, because the lessee has not possession of the premises by virtue of’ the lease. The only interest of the lessee under it, became a chose in action for the breach, in which the measure of his damages would be merely nominal. (Kelly v. Dutch Church, 2 Hill, 105.) This point seems to be very clear.
But assuming that the estate, created by the lease, continued, so as to give the tenant an interest in the surplus, *390such interest, would be only the income of the fund, subject to an abatement of the rent reserved in the lease, or the.payment of the. value of such income, over and above the rent in gross, to be ascertained upon the principle applicable to annuities.
[Dutchess General Term, May 14, 1868.There is no principle on which the tenant can be.entitled to the speculative or mercantile value of his lease, or any other value than that which by computation shall appear to be the excess of the income of the fund, over and above the rent reserved.
Upon this principle, the claim of the tenant in this case had no value. He has, therefore, no right to any portion of the surplus. The value found by the referee, was evidently a speculative one, having no other foundation than the opinion of witnesses. His conclusion being correct, no exception to the finding on the question of value was necessary.
The order appealed from must be reversed, with costs, and an order must be entered, confirming the report of the referee, and directing the payment of the surplus in conformity therewith.
Lott, L. L. Barnard, Gilbert and Tappen, Justices.]